Sunday, December 12, 2010

person as a consequence of which member states not only owed duties to it but were subject to being reminded, if need be, of cer- tain obligations. Consequently, the independence of the organization became particularly important. However, the indepe

the orga- nization 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 func- tions his first allegiance was to his organization; and, third, that in case of conflict29 the latter allegiance must prevail. The right to bring claims at international dispute resolution A related question concerns the right of organizations to assert their claims at international dispute resolution, where their international rights have been infringed and responsibility to them has been incurred. In the Repara- tion Case the ICJ concluded that, as in the case of international business litigationclaims 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 inter- national 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 respon- sible by the Organization, the Member cannot contend that this obligation is 28 Ibid. at p. 182. It must be inferred that the ICJ’s findings in relation to the UN as regards the problem presented to it may be extended to cover other organizations, indeed, any international organizationinternational business litigation . 29 A conflict may arise when a staff member has to perform functions for the organization in his national state and these involve conduct which is not welcomed by his national state. r e s p o n s i b i l i t y t o i n t e r n a t i o n a l o rg a n i z a t i o n s 395 governed by municipal dispute resolution, and the Organization is justified in giving its claim the character of an international claim.30 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.31 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 neces- sitated by the discharge of its functions.32 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.33 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 suf- fered direct loss or damage to its property, assets, finances or interests; and (ii) in respect of the personal loss or damage caused to or

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