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Developments after the Second World War and the creation of the UN have led to:
1. (i) the recognition of the international personality of international organizations; 10
2. (ii) the responsibility of States or other organizations for violations of the law to international organizations; 11
3. (iii) the right of international organizations to protect their staff, the violation of which produces international responsibility to the organization concerned. 12
Whenever international personality is attributed to an international organization, it is a legal person separate from and additional to its member States, and is not simply an aggregation of those States. It constitutes a distinct entity with functions, rights and duties of its own. While it has duties, there are counterpart obligations owing to it by, inter alia, States, the performance of which the organization has a right to expect and, if necessary, to require. This principle was referred to by the ICJ in the Reparation Case when it stated that there was an ‘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’ 13. The Court emphasized that the effective working of the organization and the accomplishment of its task required that the undertakings of Member States be strictly observed. For that purpose the ICJ thought it ‘necessary that, when an 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’. 14
(p. 48) That international organizations can possess rights under conventional law cannot be doubted. Thus, under the headquarters agreements or constitutions of organizations it was clearly envisaged that organizations would have rights vis-à-vis States. When organizations enter into treaties the same order would prevail. This was implicitly recognized in the WHO Agreement Case, 15 where the obligations of international organizations were specifically in issue and were affirmed. The rights of the UN under international agreements were recognized by the ICJ in the PLO Observer Mission Case. 16 But there are also undoubtedly obligations owed to international organizations by States primarily under customary international law, based on the analogy of the responsibility of States to each other. For example, States may have to conduct themselves actively or passively in such a way that they do not injure or damage the interests of international organizations, whether such obligations are based on risk, negligence or on absolute liability, as the case may be. The existence of obligations of international organizations at customary international law was referred to in the WHO Agreement Case 17 by the ICJ, it being reasonable to infer that conversely the organizations had rights as well. As an international person, an international organization may be expected to have such international rights.
The rights of organizations may cover an unlimited area depending on their capacity to enter into treaties and agreements and on the practical circumstances and situations in which they are placed and operate. It is not possible or necessary to identify all the rights that organizations may have. To some extent they may correspond to those that States have, but what is the source of these rights is a question. It is not clear whether they are generated by analogy with States (general principles of law) or by customary law. They certainly have the rights to have loans repaid under and in accordance with loan agreements or aid agreements, for example, as is clearly the case with loans and credits made by the IBRD and the IDA. They also have rights in respect to protection by States in which they have offices, whether under agreement or under general international law. In the Reparation Case the ICJ thought that it could not be disputed that the UN had rights relating to damage to its property and other interests. 18
Attention has been paid particularly to the right of protection for their staff members that organizations have vis-à-vis States, since the advisory opinion of the ICJ in the Reparation Case. There the principle issue was whether the UN had the capacity to bring a claim against a State for injury caused to one of its staff members. In the opinion the ICJ, without discussing the matter in detail, took the view that States had obligations vis-à-vis the UN in regard to the protection from injury of its staff members in the course of performing their duties. 19 (p. 49) The exact content of the duty to protect or keep free from injury or damage was, however, not discussed, but it may be inferred that this was one owed under general international law and would correspond to that owed by States to other States in respect of the latter's officials.
In regard to the protection of staff, Article 100 of the UN Charter provides in effect that members of the staff of the UN are not to seek or receive instructions from governments or other authorities, that their responsibility is to the organization they serve, and that the member States are not to seek to influence them in the discharge of this responsibility. The constitutions of many other international organizations have similar provisions. Even if such provisions are not included in some constitutions, what is stated in them is implicit in the position of the staff of international organizations as international civil servants. In the Reparation Case, the ICJ declined to assimilate the legal bond resulting from the stipulations of the Charter between the UN, 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 nationals. However, the Court derived certain consequences from the position of the international civil servant in his relationship with his organization:
In 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 Organization … In particular, he should not have to rely on the protection of his own State. If he had to rely on that State, his independence might well be compromised, contrary to the principle applied by Article 100 of the Charter. And lastly, it is essential that—whether the agent belongs to a powerful or to a weak State; to one more affected or less affected by the complications of international life; to one in sympathy or not 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. 20
The Court had already concluded that the organization was a distinct international person as a consequence of which Member States not only owed duties to it but were subject to being reminded, if need be, of certain obligations. Consequently, the independence of the organization became particularly important. However, the independence of the organization depended on the independence of the staff. For this reason the latter assumed special juridical significance. Thus, it was a logical conclusion that the organization's right vis-à-vis members, particularly, of the organization to protect and demand protection of its staff in the performance of duties, was implicit. It must be noted, nevertheless, that the Court's view also implied, first, that an international official does not cease to owe allegiance to his own country in his personal capacity; second, that in his official capacity and in the performance of his functions his first allegiance was to his organization; and, third, that in case of conflict the latter allegiance must prevail.
(p. 50) An important question concerns the right of organizations to assert their claims at international law, where their international rights have been infringed and responsibility to them has been incurred. In the Reparation Case the ICJ concluded that, as in the case of claims by States, the foundation of any international claim by an international organization must be a breach of an obligation owed to it on the international plane by the defendant State:
It cannot be doubted that the Organization has the capacity to bring an international claim against one of its Members which has caused injury to it by a breach of its international obligations towards it … 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. 21
The Court stated that in the case of an international organization this capacity flowed from its purpose and functions, as specified or implied in its constituent documents and developed in practice. In the case of the UN its functions were of such a character that they could not be effectively discharged, unless the organization were regarded as having been endowed with capacity to bring international claims when necessitated by the discharge of its functions. 22 The Court pointed out that: ‘It cannot be supposed that … all the members of the Organization, save the defendant State, must combine to bring a claim against the defendant for the damage suffered by the Organization.’ 23 The UN, as an organization, had the capacity to bring claims against States broadly in two categories of cases: (i) where, by reason of the wrongful act of the State in question, the organization itself had suffered direct loss or damage to its property, assets, finances or interests; and (ii) in respect of the personal loss or damage caused to or suffered by a servant or agent of the organization in the course of his duties, arising out of such an act, and additional to any damage caused to the organization itself by the same act. The Court referred to the inconvenience that would result, if the organization were not endowed with their corporate capacity in the matter.
Capacity in the first type of case is easy to concede because it is really a necessary attribute of the corporate character of the organization and its possession of international personality. However, the position in regard to the second category is less obvious for two reasons: firstly, because the servant or agent of the organization would also be the national of some State which prima facie was entitled to claim on his behalf; and, secondly, because a claim by the organization on his behalf might seem at first sight to be at variance with the rule, normally applicable in the case of claims made by States in respect of persons, that only the State of which the injured party is a national can bring a claim on his behalf. The Court met these difficulties by invoking two basic principles. (p. 51) The first was a positive one, that the special relationship between the organization and its servants required, for the effective discharge of the functions of the latter and through them the discharge of the organization's own functions, and for the effective preservation of the independence of both, that the organization should have the capacity to extend protection to its servant, and in case of need to bring a claim on his behalf. The second principle of relevance was that the rules concerning the nationality of claims applied only to those cases where the nationality of the injured person formed the sole basis for the legal wrong done to the claimant State, entitling it to make a claim, and that they did not preclude claims by entities of which the injured person was not a national where another basis justifying such a claim existed.
On the first of these points the Court introduced the problem by stating that the Charter did not expressly confer upon the UN the capacity to include, in its claim for reparation, damage caused to the victim or to persons entitled through him and that, therefore, an enquiry must first be made into whether the provisions of the Charter concerning the functions of the UN, and the part played by its agents in the performance of those functions, implied 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. 24 The work of the UN necessitated the dispatch of important missions to be performed in disturbed parts of the world, involving for the members of the mission unusual dangers to which ordinary persons were not exposed. 25 Further, the circumstances might also be such that a claim for any injury done to an agent of the organization in the performance of such a mission could not appropriately be brought by his national State or that the latter would not feel disposed to do so. Efficiency and independence of the staff required their protection. 26 The Court's conclusion was, therefore, that: ‘Upon examination of the character of the functions entrusted to the Organization and of the nature of the missions of its agents, it becomes clear that the capacity of the Organization to exercise a measure of functiona1 protection of its agents arises by necessary intendment out of the Charter.’ 27
On the second issue of the absence of the nationality link, the Court explained why the special relationship between the organization and its servants or agents which did not depend on a nationality link made it possible for the organization to make a claim not merely for the loss or damage caused to itself, but in respect also of the personal loss or damage caused to the servant or agent himself. 28 The question was why, in bringing a claim in respect of a breach of an international obligation owed to itself, the organization should be able to do anything more (p. 52) than claim for the damage caused directly to itself, qua organization, and why it should be entitled also to make a claim on behalf of the agent personally. The national State of an injured alien could bring a claim on behalf of its national because it is regarded as having suffered injury in the person of its national in addition to having suffered a breach of an obligation owed to it. But in the case of an international organization the international obligation was something other than the general international law obligation to afford certain treatment to aliens. The obligation arose from the nature, functions, and requirements of an international organization which normally make it necessary that its agents be able to look to it, and not to any State, even their national State, for protection while carrying out their duties on behalf of the organization. There was a duty to afford protection to agents of the UN in the performance of their functions which arose as a general inference both from the Charter and from certain related instruments. Not only were these general undertakings of the Members but Article 2(5) of the Charter required them to render the UN ‘every assistance’. 29 Thus, the breach of an obligation owed to the organization gave the organization, like the national State of an injured party, its own right in making the claim, even though the claim was in respect of personal damage to the agent or his defendants. 30
Having established that the tie of nationality was not crucial to the right of an organization to bring a claim on behalf of one of its servants, the Court, further, concluded, as a logical corollary, that the fact that the injured party was a national of the defendant State did not affect the right to claim. Because the action of the organization was in fact based not upon the nationality of the victim but upon his status as agent of the organization, it did not matter whether he was a national of the State to which the claim was addressed. Thus, the fact of the possession of the nationality of the defendant State by the agent did not constitute any obstacle to a claim brought by the organization for a breach of obligations towards it occurring in relation to the performance of his mission by the agent. 31
The conclusion of the ICJ is explicable by reference to the fact that the reason why a claim cannot be brought by a State of which the injured party is a national, when he is also a national of the defendant State, is that, because the treatment accorded by the latter to the injured party constitutes action on the domestic plane, as he is a national of the latter, irrespective of any other nationality he may possess, there has been no conduct on the international plane which could give rise to an international claim. There has been no violation of an international obligation in these circumstances, because the injured party is not an alien vis-à-vis the defendant State and the latter could not have (p. 53) committed a breach of rules relating to the treatment of aliens which is what normally gives rise to an international claim on behalf of an individual. The situation may be contrasted with that in which the basis of the international claim is not an obligation relating to the treatment of aliens as such but an obligation designed to protect local nationals against certain kinds of treatment at the hands of their own State, such as arises from human rights or minorities provisions in treaties. In such cases the claim is not based on the injury suffered by the claimant State in the person of its national, arising out of a breach of the general international law obligation to treat aliens in a certain way. It is based on a separate right, generally arising from a treaty, that exists independently of the issue of nationality. A claim by an international organization for an injury done to one of its agents in the performance of his functions is of a similar kind. The claim does not arise from the breach of general international law obligation to treat aliens in a certain way. But it is based on a breach of certain obligations owed to the organization by member States arising in consequence of the terms of its constitutive instrument and possibly by analogy with general rules of international law.
The ICJ also dealt with the question of conflicting claims by an international organization on behalf of its agent and by his national State in connection with the same events. International tribunals were already familiar with the problem of a claim in which two or more national States were interested and knew how to protect the defendant State in such a case. 32 The general rule (to which there may be exceptions) 33 was that priority was not assigned to one or the other and that neither was compelled to refrain from bringing an international claim: ‘There is no rule of law which assigns priority to the one or to the other, or which compels either … to refrain from bringing an international claim.’ 34
As regards the relationship with non-Member States, the Court found that in principle the UN had capacity to bring an international claim against non-Member States in respect of injuries done to its agents. Because the international personality of the organization, though in origin the creation of the Charter, existed as an independent objective fact, and therefore existed vis-à-vis non-members also together with the attributes and incidents deriving from the Charter and from the character and functions of the organization as thereby created, along with it went the capacity to bring international claims. 35
The right of international organizations to bring claims involving staff is not based on diplomatic protection as such but is based on attributing to organizations a direct right relating to their functioning as organizations with international personality.
(p. 54) Protection of Individuals under Treaties
Individuals may be covered by a system of protection created by treaties. The treaties may or may not create particular substantive rights but become significant because of the procedural structures created for invoking remedies. Under these treaties protection by a State may not depend on nationality of the protecting States. Such treaty arrangements include treaties for the protection of minorities and the current human rights conventions. The protection given by States to individuals pursuant to such treaty arrangements are not describable as diplomatic protection but it is specific to such arrangements.
Moreover, as will be seen in later chapters of this work, there are conventional arrangements which have supplanted diplomatic protection, at least to some extent, or have modified or qualified the coverage of diplomatic protection. Such are the arrangements under the ICSID Convention and pursuant to many bilateral investment treaties.
Notes:
(1) The impact of multilateral and bilateral treaties on the law of diplomatic protection proper is discussed in Chapter 17 below.
(2) See Dunn, The Protection of Nationals (1932) 18 ff, Bennouna, ‘Preliminary Report on Diplomatic Protection’ (ILC), UN Doc. A/CN.4/484, 4.
(3) Geck, ‘Diplomatic Protection’, 1 EPIL (1992) 1046.
(4) 500 UNTS 95. For more on the Convention see Denza, Diplomatic Law (1976) and Dembinski, The Modern Law of Diplomacy (1988) particularly 153–61, 183–90, 201–21; Jennings and Watts (eds), 2 Oppenheim's International Law (1992) 1053–1131.
(5) 596 UNTS (1963) 261. The Convention came into force in 1967. On the Convention see Lee, Vienna Convention on Consular Relations (1966), Jennings and Watts (eds), (note 4 above), 1132–53.
(6) 1980 ICJ Reports 3, passim.
(7) See Jennings and Watts (eds), (note 4 above), Chapter 9.
(8) See Jennings and Watts, 2 ibid, Chapter 12.
(9) The Convention on the Prevention of Crimes against Internationally Protected Persons, Including Diplomatic Agents, of 1973 (13 ILM (1974) 41) codifies some of the rights States enjoy in respect of internationally protected persons: see on this convention Bloomfield and Fitzgerald, Crimes against Internationally Protected Persons (1975).
(10) C F Amerasinghe, Principles of the Institutional Law of International Organizations (2005), Chapter 3.
(11) On this see C F Amerasinghe, ibid 390 ff.
(12) See C F Amerasinghe, ibid 393 ff.
(13) 1949 ICJ Reports 184.
(14) Ibid 183.
(15) 1980 ICJ Reports 90. The case concerned the rights of the parties vis-à-vis each other under an international agreement relating to the location of an office of the WHO.
(16) 1988 ICJ Reports 13.
(17) 1980 ICJ Reports 90.
(18) 1949 ICJ Reports 184. Other organizations, it may be inferred, have similar rights.
(19) Ibid 181 ff.
(20) Ibid 182.
(21) Ibid 180.
(22) Ibid.
(23) Ibid 180–1.
(24) Ibid 182.
(25) Ibid 183.
(26) Ibid.
(27) Ibid 184.
(28) Ibid 181–2.
(29) Ibid 183.
(30) Ibid 184.
(31) Ibid 186. The reasoning and conclusions of the ICJ in this case are of general application to all organizations. This is reasonable.
(32) Ibid.
(33) The Nottebohm Case, 1955 ICJ Reports 22.
(34) 1949 ICJ Reports at 185.
(35) Ibid. Here also the findings of the court may be applied generally.
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