|
[p.151]
The Court,
composed as above,
gives the following Advisory Opinion:
The request which laid the matter before the Court was formulated in a
letter dated 21 December 1961 from the Acting Secretary-General of the
United Nations to the President of the Court, received in the Registry on 27
December. In that letter the Acting Secretary-General informed the President
of the Court that the General Assembly, by a resolution adopted on 20
December 1961, had decided to request the International Court of Justice to
give an advisory opinion on the following question:
“Do the expenditures authorized in General Assembly resolutions 1583 (XV)
and 1590 (XV) of 20 December 1960, 1595 (XV) of 3 April 1961, 1619 (XV) of
21 April 1961 and 1633 (XVI) of 30 October 1961 relating to the United
Nations operations in the Congo undertaken in pursuance of the Security
Council resolutions of 14 July, 22 July and 9 August 1960, and 21 February
and 24 November 1961, and General Assembly resolutions 1474 (ES-IV) of 20
September 1960 and 1599 (XV), 1600 (XV) and 1601 (XV) of 15 April 1961, and
the expenditures authorized in General Assembly resolutions 1122 (XI) of 26
November 1956, 1089 (XI) of 21 December 1956, 1090 (XI) of 27 February
1957, 1151 (XII) of 22 November 1957, 1204 (XII) of 13 December 1957, 1337
(XIII) of 13 December 1958, 1441 (XIV) of 5 December 1959 and 1575 (XV) of
20 December 1960 relating to the operations of the United Nations Emergency
Force undertaken in pursuance of General Assembly resolutions 997 (ES-I) of
2 November 1956, 998 (ES-I) and 999 (ES-I) of 4 November 1956, 1000 (ES-I)
of 5 November 1956, 1001 (ES-I) of 7 November 1956, 1121 (XI) of 24 November
1956 and 1263 (XIII) of 14 November 1958, constitue 'expenses of the
Organization' within the meaning of Article 17, paragraph 2, of the Charter
of the United Nations?"
In the Acting Secretary-General's letter was enclosed a certified copy of
the aforementioned resolution of the General Assembly. At the same time the
Acting Secretary-General announced that he would transmit to the Court, in
accordance with Article 65 of the Statute, all documents likely to throw
light upon the question.
Resolution 1731 (XVI) by which the General Assembly decided to request an
advisory opinion from the Court reads as follows:
"The General Assembly,
Recognizing its need for authoritative legal guidance as to obligations of
Member States under the Charter of the United Nations [p 153] in the matter
of financing the United Nations operations in the Congo and in the Middle
East,
1. Decides to submit the following question to the International Court of
Justice for an advisory opinion:
"Do the expenditures authorized in General Assembly resolutions 1583 (XV)
and 1590 (XV) of 20 December 1960, 1595 (XV) of 3 April 1961, 1619 (XV) of
21 April 1961 and 1633 (XVI) of 30 October 1961 relating to the United
Nations operations in the Congo undertaken in pursuance of the Security
Council resolutions of 14 July, 22 July and 9 August 1960, and 21 February
and 24 November 1961, and General Assembly resolutions 1474 (ES-IV) of 20
September 1960 and 1599 (XV), 1600 (XV) and 1601 (XV) of 15 April 1961, and
the expenditures authorized in General Assembly resolutions 1122 (XI) of 26
November 1956, 1089 (XI) of 21 December 1956, 1090 (XI) of 27 February 1957,
1151 (XII) of 22 November 1957, 1204 (XII) of 13 December 1957, 1337 (XIII)
of 13 December 1958, 1441 (XIV) of 5 December 1959 and 1575 (XV) of 20
December 1960 relating to the operations of the United Nations Emergency
Force undertaken in pursuance of General Assembly resolutions 997 (ES-I) of
2 November 1956, 998 (ES-I) and 999 (ES-I) of 4 November 1956, 1000 (ES-I)
of 5 November 1956, 1001 (ES-I) of 7 November 1956, 1121 (XI) of 24
November 1956 and 1263 (XIII) of 14 November 1958, constitute 'expenses of
the Organization' within the meaning of Article 17, paragraph 2, of the
Charter of the United Nations?"
2. Requests the Secretary-General, in accordance with Article 65 of the
Statute of the International Court of Justice, to transmit the present
resolution to the Court, accompanied by all documents likely to throw light
upon the question."
***
On 27 December 1961, the day the letter from the Acting Secretary-General
of the United Nations reached the Registry, the President, in pursuance of
Article 66, paragraph 2, of the Statute, considered that the States Members
of the United Nations were likely to be able to furnish information on the
question and made an Order fixing 20 February 1962 as the time-limit within
which the Court would be prepared to receive written statements from them
and the Registrar sent to them the special and direct communication
provided for in that Article, recalling that resolution 1731 (XVI) and those
referred to in the question submitted for opinion were already in their
possession.
The notice to all States entitled to appear before the Court of the letter
from the Acting Secretary-General and of the resolution therein enclosed,
prescribed by Article 66, paragraph 1, of the Statute, was given by letter
of 4 January 1962.
The following Members of the United Nations submitted statements, notes or
letters setting forth their views: Australia, Bulgaria, [p 154] Byelorussian
Soviet Socialist Republic, Canada, Czechoslovakia, Denmark, France, Ireland,
Italy, Japan, Netherlands, Portugal, Romania, South Africa, Spain, Ukrainian
Soviet Socialist Republic, Union of Soviet Socialist Republics, United
Kingdom of Great Britain and Northern Ireland, United States of America and
Upper Volta. Copies of these communications were transmitted to all Members
of the United Nations and to the Acting Secretary-General of the United
Nations.
Mexico, the Philippines and Poland referred in letters to the views
expressed on their behalf during the session of the General Assembly.
The Acting Secretary-General of the United Nations, in pursuance of Article
65, paragraph 2, of the Statute, transmitted to the Court a dossier of
documents likely to throw light upon the ques-tion, together with an
Introductory Note and a note by the Controller on the budgetary and
financial practices of the United Nations; these documents reached the
Registry on 21 February and 1 March 1962.
The Members of the United Nations were informed on 23 March 1962 that the
oral proceedings in this case would open towards the beginning of May. On 16
April 1962 they were notified that 14 May had been fixed as the opening
date. Hearings were held from 14 to 19 May and on 21 May, the Court being
addressed by the following:
for Canada: M. Marcel Cadieux, Deputy Under-Secretary and Legal Adviser for
the Department of External Affairs;
for the Netherlands : Professor W. Riphagen, Legal Adviser to the Ministry
of Foreign Affairs;
for Italy: M. Riccardo Monaco, Professor at the University of Rome, Head of
Department for Contentious Diplomatic Questions, Ministry of Foreign
Affairs;
for the United Kingdom of Great Britain and Northern Ireland: The Rt. Hon.
Sir Reginald Manning-ham-Buller, Q.C., Attorney-General;
for Norway: Mr. Jens Evensen, Director-General, Ministry of Foreign Affairs;
for Australia: Sir Kenneth Bailey, Solicitor-General;
for Ireland: Mr. Aindrias O' Caoimh, S.C., Attorney-General;
for the Union of Soviet Socialist Republics: Professor G. I. Tunkin,
Director of the Juridical-Treaty Department of the Ministry of Foreign
Affairs;
for the United States of America: The Honorable Abram Chayes, Legal Adviser,
Department of State.
[p 155]
***
Before proceeding to give its opinion on the question put to it, the Court
considers it necessary to make the following preliminary remarks:
The power of the Court to give an advisory opinion is derived from Article
65 of the Statute. The power granted is of a discretionary character. In
exercising its discretion, the International Court of Justice, like the
Permanent Court of International Justice, has always been guided by the
principle which the Permanent Court stated in the case concerning the Status
of Eastern Carelia on 23 July 1923: "The Court, being a Court of Justice,
cannot, even in giving advisory opinions, depart from the essential rules
guiding their activity as a Court" (P.C.I.J., Series B, No. 5, p. 29).
Therefore, and in accordance with Article 65 of its Statute, the Court can
give an advisory opinion only on a legal question. If a question is not a
legal one, the Court has no discretion in the matter; it must decline to
give the opinion requested. But even if the question is a legal one, which
the Court is undoubtedly competent to answer, it may nonetheless decline to
do so. As this Court said in its Opinion of 30 March 1950, the permissive
character of Article 65 "gives the Court the power to examine whether the
circumstances of the case are of such a character as should lead it to
decline to answer the Request" {Interpretation of Peace Treaties with
Bulgaria, Hungary and Romania (First Phase), I.C.J. Reports 1950, p. 72).
But, as the Court also said in the same Opinion, "the reply of the Court,
itself an 'organ of the United Nations', represents its participation in the
activities of the Organization, and, in principle, should not be refused"
(ibid., p. 71). Still more emphatically, in its Opinion of 23 October 1956,
the Court said that only "compelling reasons" should lead it to refuse to
give a requested advisory opinion (Judgments of the Administrative Tribunal
of the I.L.O. upon complaints made against the Unesco, I.C.J. Reports 1956,
p. 86).
The Court finds no "compelling reason" why it should not give the advisory
opinion which the General Assembly requested by its resolution 1731 (XVI).
It has been argued that the question put to the Court is intertwined with
political questions, and that for this reason the Court should refuse to
give an opinion. It is true that most interpretations of the Charter of the
United Nations will have political significance, great or small. In the
nature of things it could not be otherwise. The Court, however, cannot
attribute a political character to a request which invites it to undertake
an essentially judicial task, namely, the interpretation of a treaty
provision.
In the preamble to the resolution requesting this opinion, the General
Assembly expressed its recognition of "its need for authori-[p 156]tative
legal guidance". In its search for such guidance it has put to the Court a
legal question—a question of the interpretation of Article 17, paragraph 2,
of the Charter of the United Nations. In its Opinion of 28 May 1948, the
Court made it clear that as "the principal judicial organ of the United
Nations", it was entitled to exercise in regard to an article of the
Charter, "a multilateral treaty, an interpretative function which falls
within the normal exercise of its judicial powers" (Conditions of Admission
of a State to Membership in the United Nations (Article 4 of the Charter),
I.C.J. Reports 1947-1948, p. 61).
The Court, therefore, having been asked to give an advisory opinion upon a
concrete legal question, will proceed to give its opinion.
***
The question on which the Court is asked to give its opinion is whether
certain expenditures which were authorized by the General Assembly to cover
the costs of the United Nations operations in the Congo (hereinafter
referred to as ONUC) and of the operations of the United Nations Emergency
Force in the Middle East (hereinafter referred to as UNEF), "constitute
'expenses of the Organization' within the meaning of Article 17, paragraph
2, of the Charter of the United Nations".
Before entering upon the detailed aspects of this question, the Court will
examine the view that it should take into consideration the circumstance
that at the 1986th Plenary Meeting of the General Assembly on 20 December
1961, an amendment was proposed, by the representative of France, to the
draft resolution requesting the advisory opinion, and that this amendment
was rejected. The amendment would have asked the Court to give an opinion on
the question whether the expenditures relating to the indicated operations
were "decided on in conformity with the provisions of the Charter"; if that
question were answered in the affirmative, the Court would have been asked
to proceed to answer the question which the resolution as adopted actually
poses.
If the amendment had been adopted, the Court would have been asked to
consider whether the resolutions authorizing the expenditures were decided
on in conformity with the Charter; the French amendment did not propose to
ask the Court whether the resolutions in pursuance of which the operations
in the Middle East and in the Congo were undertaken, were adopted in
conformity with the Charter.
The Court does not find it necessary to expound the extent to which the
proceedings of the General Assembly, antecedent to the adoption of a
resolution, should be taken into account in interpreting that resolution,
but it makes the following comments on the argument based upon the rejection
of the French amendment. [p 157]
The rejection of the French amendment does not constitute a directive to the
Court to exclude from its consideration the question whether certain
expenditures were "decided on in conformity with the Charter", if the Court
finds such consideration appropriate. It is not to be assumed that the
General Assembly would thus seek to fetter or hamper the Court in .the
discharge of its judicial functions; the Court must have full liberty to
consider all relevant data available to it in forming an opinion on a
question posed to it for an advisory opinion. Nor can the Court agree that
the rejection of the French amendment has any bearing upon the question
whether the General Assembly sought to preclude the Court from interpreting
Article 17 in the light of other articles of the Charter, that is, in the
whole context of the treaty. If any deduction is to be made from the debates
on this point, the opposite conclusion would be drawn from the clear
statements of sponsoring delegations that they took it for granted the Court
would consider the Charter as a whole.
***
Turning to the question which has been posed, the Court observes that it
involves an interpretation of Article 17, paragraph 2, of the Charter. On
the previous occasions when the Court has had to interpret the Charter of
the United Nations, it has followed the principles and rules applicable in
general to the interpretation of treaties, since it has recognized that the
Charter is a multilateral treaty, albeit a treaty having certain special
characteristics. In interpreting Article 4 of the Charter, the Court was led
to consider "the structure of the Charter" and "the relations established by
it between the General Assembly and the Security Council"; a comparable
problem confronts the Court in the instant matter. The Court sustained its
interpretation of Article 4 by considering the manner in which the organs
concerned "have consistently interpreted the text" in their practice
(Competence of the General Assembly for the Admission of a State to the
United Nations, I.C.J. Reports 1950, pp. 8-9).
The text of Article 17 is in part as follows:
"1. The General Assembly shall consider and approve the budget of the
Organization.
2. The expenses of the Organization shall be borne by the Members as
apportioned by the General Assembly."
Although the Court will examine Article 17 in itself and in its relation to
the rest of the Charter, it should be noted that at least three separate
questions might arise in the interpretation of para-graph 2 of this Article.
One question is that of identifying what are "the expenses of the
Organization"; a second question might [p 158] concern apportionment by the
General Assembly; while a third question might involve the interpretation of
the phrase "shall be borne by the Members". It is the second and third
questions which directly involve "the financial obligations of the Members",
but it is only the first question which is posed by the request for the
advisory opinion. The question put to the Court has to do with a moment
logically anterior to apportionment, just as a question of apportionment
would be anterior to a question of Members' obligation to pay.
It is true that, as already noted, the preamble of the resolution containing
the request refers to the General Assembly's "need for authoritative legal
guidance as to obligations of Member States", but it is to be assumed that
in the understanding of the General Assembly, it would find such guidance in
the advisory opinion which the Court would give on the question whether
certain identified expenditures "constitute 'expenses of the Organization'
within the meaning of Article 17, paragraph 2, of the Charter". If the Court
finds that the indicated expenditures are such "expenses", it is not called
upon to consider the manner in which, or the scale by which, they may be
apportioned. The amount of what are unquestionably "expenses of the
Organization within the meaning of Article 17, paragraph 2" is not in its
entirety apportioned by the General Assembly and paid for by the
contributions of Member States, since the Organization has other sources of
income. A Member State, accordingly, is under no obligation to pay more than
the amount apportioned to it; the expenses of the Organization and the total
amount in money of the obligations of the Member States may not, in
practice, necessarily be identical.
The text of Article 17, paragraph 2, refers to "the expenses of the
Organization" without any further explicit definition of such expenses. It
would be possible to begin with a general proposition to the effect that the
"expenses" of any organization are the amounts paid out to defray the costs
of carrying out its purposes, in this case, the political, economic, social,
humanitarian and other purposes of the United Nations. The next step would
be to examine, as the Court will, whether the resolutions authorizing the
operations here in question were intended to carry out the purposes of the
United Nations and whether the expenditures were incurred in furthering
these operations. Or, it might simply be said that the "expenses" of an
organization are those which are provided for in its budget. But the Court
has not been asked to give an abstract definition of the words "expenses of
the Organization". It has been asked to answer a specific question related
to certain identified expenditures which have actually been made, but the
Court would not adequately discharge the obligation incumbent on it unless
it examined in some detail various problems raised by the question which the
General Assembly has asked. [p 159]
It is perhaps the simple identification of "expenses" with the items
included in a budget, which has led certain arguments to link the
interpretation of the word "expenses" in paragraph 2 of Article 17, with the
word "budget" in paragraph 1 of that Article; in both cases, it is
contended, the qualifying adjective "regular" or "administrative" should be
understood to be implied. Since no such qualification is expressed in the
text of the Charter, it could be read in, only if such qualification must
necessarily be implied from the provisions of the Charter considered as a
whole, or from some particular provision thereof which makes it unavoidable
to do so in order to give effect to the Charter.
In the first place, concerning the word "budget" in paragraph 1 of Article
17, it is clear that the existence of the distinction between
"administrative budgets" and "operational budgets" was not absent from the
minds of the drafters of the Charter, nor from the consciousness of the
Organization even in the early days of its history. In drafting Article 17,
the drafters found it suitable to provide in paragraph 1 that "The General
Assembly shall consider and approve the budget of the Organization". But in
dealing with the function of the General Assembly in relation to the
specialized agencies, they provided in paragraph 3 that the General Assembly
"shall examine the administrative budgets of such specialized agencies". If
it had been intended that paragraph 1 should be limited to the
administrative budget of the United Nations organization itself, the word
"administrative" would have been inserted in paragraph 1 as it was in
paragraph 3. Moreover, had it been contemplated that the Organization would
also have had another budget, different from the one which was to be
approved by the General Assembly, the Charter would have included some
reference to such other budget and to the organ which was to approve it.
Similarly, at its first session, the General Assembly in drawing up and
approving the Constitution of the International Refugee Organization,
provided that the budget of that Organization was to be divided under the
headings "administrative", "operational" and "large-scale resettlement"; but
no such distinctions were introduced into the Financial Regulations of the
United Nations which were adopted by unanimous vote in 1950, and which, in
this respect, remain unchanged. These regulations speak only of "the budget"
and do not provide any distinction between "administrative" and
"operational".
In subsequent sessions of the General Assembly, including the sixteenth,
there have been numerous references to the idea of distinguishing an
"operational" budget; some speakers have advocated such a distinction as a
useful book-keeping device; some considered it in connection with the
possibility of differing scales of assessment or apportionment; others
believed it should mark a differentiation of activities to be financed by
voluntary contribu-[p 160] tions. But these discussions have not resulted
in the adoption of two separate budgets based upon such a distinction.
Actually, the practice of the Organization is entirely consistent with the
plain meaning of the text. The budget of the Organization has from the
outset included items which would not fall within any of the definitions of
"administrative budget" which have been advanced in this connection. Thus,
for example, prior to the establishment of, and now in addition to, the
"Expanded Programme of Technical Assistance" and the "Special Fund", both of
which are nourished by voluntary contributions, the annual budget of the
Organization contains provision for funds for technical assistance; in the
budget for the financial year 1962, the sum of $6,400,000 is included for
the technical programmes of economic development, social activities, human
rights activities, public administration and narcotic drugs control.
Although during the Fifth Committee discussions there was a suggestion that
all technical assistance costs should be excluded from the regular budget,
the items under these heads were all adopted on second reading in the Fifth
Committee without a dissenting vote. The "operational" nature of such
activi-ties so budgeted is indicated by the explanations in the budget
estimates, e.g. the requests "for the continuation of the operational
programme in the field of economic development contemplated in General
Assembly resolutions 200 (III) of 4 December 1948 and 304 (IV) of 16
November 1949"; and "for the continuation of the operational programme in
the field of advisory social welfare services as contemplated in General
Assembly resolution 418 (V) of 1 December 1950".
It is a consistent practice of the General Assembly to include in the annual
budget resolutions, provision for expenses relating to the maintenance of
international peace and security. Annually, since 1947, the General Assembly
has made anticipatory provision for "unforeseen and extraordinary expenses"
arising in relation to the "maintenance of peace and security". In a Note
submitted to the Court by the Controller on the budgetary and financial
practices of the United Nations, "extraordinary expenses" are defined as
"obligations and expenditures arising as a result of the approval by a
council, commission or other competent United Nations body of new programmes
and activities not contemplated when the budget appropriations were
approved".
The annual resolution designed to provide for extraordinary expenses
authorizes the Secretary-General to enter into commitments to meet such
expenses with the prior concurrence of the Advisory Committee on
Administrative and Budgetary Questions, except that such concurrence is not
necessary if the Secretary-[p 161] General certifies that such commitments
relate to the subjects mentioned and the amount does not exceed $2 million.
At its fifteenth and sixteenth sessions, the General Assembly resolved "that
if, as a result of a decision of the Security Council, commitments relating
to the maintenance of peace and security should arise in an estimated total
exceeding $10 million" before the General Assembly was due to meet again, a
special session should be convened by the Secretary-General to consider the
matter. The Secretary-General is regularly authorized to draw on the
Working Capital Fund for such expenses but is required to submit
supplementary budget estimates to cover amounts so advanced. These annual
resolutions on unforeseen and extraordinary expenses were adopted without a
dissenting vote in every year from 1947 through 1959, except for 1952, 1953
and 1954, when the adverse votes are attri-butable to the fact that the
resolution included the specification of a controversial item—United Nations
Korean war decorations.
It is notable that the 1961 Report of the Working Group of Fifteen on the
Examination of the Administrative and Budgetary Procedures of the United
Nations, while revealing wide differences of opinion on a variety of
propositions, records that the following statement was adopted without
opposition:
"22. Investigations and observation operations undertaken by the
Organization to prevent possible aggression should be financed as part of
the regular budget of the United Nations."
In the light of what has been stated, the Court concludes that there is no
justification for reading into the text of Article 17, paragraph 1, any
limiting or qualifying word before the word "budget"
***
Turning to paragraph 2 of Article 17, the Court observes that, on its face,
the term "expenses of the Organization" means all the expenses and not just
certain types of expenses which might be referred to as "regular expenses".
An examination of other parts of the Charter shows the variety of expenses
which must inevitably be included within the "expenses of the Organization"
just as much as the salaries of staff or the maintenance of buildings.
For example, the text of Chapters IX and X of the Charter with reference to
international economic and social cooperation, especially the wording of
those articles which specify the functions and powers of the Economic and
Social Council, anticipated the numerous and varied circumstances under
which expenses of the Organi-[p 162]zation could be incurred and which have
indeed eventuated in practice.
Furthermore, by Article 98 of the Charter, the Secretary-General is
obligated to perform such functions as are entrusted to him by the General
Assembly, the Security Council, the Economic and Social Council, and the
Trusteeship Council. Whether or not expenses incurred in his discharge of
this obligation become "expenses of the Organization" cannot depend on
whether they be administrative or some other kind of expenses.
The Court does not perceive any basis for challenging the legality of the
settled practice of including such expenses as these in the budgetary
amounts which the General Assembly apportions among the Members in
accordance with the authority which is given to it by Article 17, paragraph
2.
***
Passing from the text of Article 17 to its place in the general structure
and scheme of the Charter, the Court will consider whether in that broad
context one finds any basis for implying a limitation upon the budgetary
authority of the General Assembly which in turn might limit the meaning of
"expenses" in paragraph 2 of that Article.
The general purposes of Article 17 are the vesting of control over the
finances of the Organization, and the levying of apportioned amounts of the
expenses of the Organization in order to enable it to carry out the
functions of the Organization as a whole acting through its principal organs
and such subsidiary organs as may be established under the authority of
Article 22 or Article 29.
Article 17 is the only article in the Charter which refers to budgetary
authority or to the power to apportion expenses, or otherwise to raise
revenue, except for Articles 33 and 35, paragraph 3, of the Statute of the
Court which have no bearing on the point here under discussion.
Nevertheless, it has been argued before the Court that one type of expenses,
namely those resulting from operations for the maintenance of international
peace and security, are not "expenses of the Organization" within the
meaning of Article 17, paragraph 2, of the Charter, inasmuch as they fall to
be dealt with exclusively by the Security Council, and more especially
through agreements negotiated in accordance with Article 43 of the Charter.
The argument rests in part upon the view that when the maintenance of
international peace and security is involved, it is only the Security
Council which is authorized to decide on any action relative thereto. It is
argued further that since the General Assembly's power is limited to
discussing, considering, studying and recommending, it cannot impose an
obligation to pay the expenses which result from the implementation of its
recommendations. This [p 163] argument leads to an examination of the
respective functions of the General Assembly and of the Security Council
under the Charter, particularly with respect to the maintenance of
international peace and security.
Article 24 of the Charter provides:
"In order to ensure prompt and effective action by the United Nations, its
Members confer on the Security Council primary responsibility for the
maintenance of international peace and security..."
The responsibility conferred is "primary", not exclusive. This primary
responsibility is conferred upon the Security Council, as stated in Article
24, "in order to ensure prompt and effective action". To this end, it is the
Security Council which is given a power to impose an explicit obligation of
compliance if for example it issues an order or command to an aggressor
under Chapter VII. It is only the Security Council which can require
enforcement by coercive action against an aggressor.
The Charter makes it abundantly clear, however, that the General Assembly is
also to be concerned with international peace and security. Article 14
authorizes the General Assembly to "recommend measures for the peaceful
adjustment of any situation, regardless of origin, which it deems likely to
impair the general welfare or friendly relations among nations, including
situations resulting from a violation of the provisions of the present
Charter setting forth the purposes and principles of the United Nations".
The word "measures" implies some kind of action, and the only limitation
which Article 14 imposes on the General Assembly is the restriction found in
Article 12, namely, that the Assembly should not recommend measures while
the Security Council is dealing with the same matter unless the Council
requests it to do so. Thus while it is the Security Council which,
exclusively, may order coercive action, the functions and powers conferred
by the Charter on the General Assembly are not confined to discussion,
consideration, the initiation of studies and the making of recommendations;
they are not merely hortatory. Article 18 deals with "decisions" of the
General Assembly "on important questions". These "decisions" do indeed
include certain recommendations, but others have dispositive force and
effect. Among these latter decisions, Article 18 includes suspension of
rights and privileges of membership, expulsion of Members, "and budgetary
questions". In connection with the suspension of rights and privileges of
membership and expulsion from membership under Articles 5 and 6, it is the
Security Council which has only the power to recommend and it is the General
Assembly which decides and whose decision determines status; but there is a
close collaboration between the two organs. Moreover, these powers of
decision of the General Assembly under Arti-[p 164] cles 5 and 6 are
specifically related to preventive or enforcement measures.
By Article 17, paragraph I, the General Assembly is given the power not only
to "consider" the budget of the Organization, but also to "approve" it. The
decision to "approve" the budget has a close connection with paragraph 2 of
Article 17, since thereunder the General Assembly is also given the power to
apportion the expenses among the Members and the exercise of the power of
apportionment creates the obligation, specifically stated in Article 17,
paragraph 2, of each Member to bear that part of the expenses which is
apportioned to it by the General Assembly. When those expenses include
expenditures for the maintenance of peace and security, which are not
otherwise provided for, it is the General Assembly which has the authority
to apportion the latter amounts among the Members/The provisions of the
Charter which distribute functions and powers to the Security Council and to
the General Assembly give no support to the view that such distribution
excludes from the powers of the General Assembly the power to provide for
the financing of measures designed to maintain peace and security.
The argument supporting a limitation on the budgetary authority of the
General Assembly with respect to the maintenance of international peace and
security relies especially on the reference to "action" in the last sentence
of Article 11, paragraph 2. This paragraph reads as follows:
"The General Assembly may discuss any questions relating to the maintenance
of international peace and security brought before it by any Member of the
United Nations, or by the Security Council, or by a State which is not a
Member of the United Nations in accordance with Article 35, paragraph 2,
and, except as provided in Article 12, may make recommendations with regard
to any such question to the State or States concerned or to the Security
Council, or to both. Any such question on which action is necessary shall be
referred to the Security Council by the General Assembly either before or
after discussion."
The Court considers that the kind of action referred to in Article 11,
paragraph 2, is coercive or enforcement action. This paragraph, which
applies not merely to general questions relating to peace and security, but
also to specific cases brought before the General Assembly by a State under
Article 35, in its first sentence empowers the General Assembly, by means of
recommendations to States or to the Security Council, or to both, to
organize peacekeeping operations, at the request, or with the consent, of
the States concerned. This power of the General Assembly is a special power
which in no way derogates from its general powers under Article 10 [p 165]
or Article 14, except as limited by the last sentence of Article n,
paragraph 2. This last sentence says that when "action" is necessary the
General Assembly shall refer the question to the Security Council. The word
"action" must mean such action as is solely within the province of the
Security Council. It cannot refer to recommendations which the Security
Council might make, as for instance under Article 38, because the General
Assembly under Article 11 has a comparable power. The "action" which is
solely within the province of the Security Council is that which is
indicated by the title of Chapter VII of the Charter, namely "Action with
respect to threats to the peace, breaches of the peace, and acts of
aggression". If the word "action" in Article 11, paragraph 2, were
interpreted to mean that the General Assembly could make recommendations
only of a general character affecting peace and security in the abstract,
and not in relation to specific cases, the paragraph would not have provided
that the General Assembly may make recommendations on questions brought
before it by States or by the Security Council. Accordingly, the last
sentence of Article 11, paragraph 2, has no application where the necessary
action is not enforcement action.
The practice of the Organization throughout its history bears out the
foregoing elucidation of the term "action" in the last sentence of Article
11, paragraph 2. Whether the General Assembly proceeds under Article 11 or
under Article 14, the implementation of its recommendations for setting up
commissions or other bodies involves organizational activity—action—in
connection with the maintenance of international peace and security. Such
implementation is a normal feature of the functioning of the United
Nations. Such committees, commissions or other bodies or individuals,
constitute, in some cases, subsidiary organs established under the authority
of Article 22 of the Charter. The functions of the General Assembly for
which it may establish such subsidiary organs include, for example,
investigation, observation and supervision, but the way in which such
subsidiary organs are utilized depends on the consent of the State or States
concerned.
The Court accordingly finds that the argument which seeks, by reference to
Article 11, paragraph 2, to limit the budgetary authority of the General
Assembly in respect of the maintenance of international peace and security,
is unfounded.
***
It has further been argued before the Court that Article 43 of the Charter
constitutes a particular rule, a lex specialis, which derogates [p 166] from
the general rule in Article 17, whenever an expenditure for the maintenance
of international peace and security is involved. Article 43 provides that
Members shall negotiate agreements with the Security Council on its
initiative, stipulating what "armed forces, assistance and facilities,
including rights of passage, necessary for the purpose of maintaining
international peace and security", the Member State will make available to
the Security Council on its call. According to paragraph 2 of the Article:
"Such agreement or agreements shall govern the numbers and types of forces,
their degree of readiness and general location, and the nature of the
facilities and assistance to be provided."
The argument is that such agreements were intended to include specifications
concerning the allocation of costs of such enforcement actions as might be
taken by direction of the Security Council, and that it is only the Security
Council which has the authority to arrange for meeting such costs.
With reference to this argument, the Court will state at the outset that,
for reasons fully expounded later in this Opinion, the operations known as
UNEF and ONUC were not enforcement actions within the compass of Chapter VII
of the Charter and that therefore Article 43 could not have any
applicability to the cases with which the Court is here concerned. However,
even if Article 43 were applicable, the Court could not accept this
interpretation of its text for the following reasons.
There is nothing in the text of Article 43 which would limit the discretion
of the Security Council in negotiating such agreements. It cannot be assumed
that in every such agreement the Security Council would insist, or that any
Member State would be bound to agree, that such State would bear the entire
cost of the "assistance" which it would make available including, for
example, transport of forces to the point of operation, complete logistical
maintenance in the field, supplies, arms and ammunition, etc. If, during
negotiations under the terms of Article 43, a Member State would be
entitled (as it would be) to insist, and the Security Council would be
entitled (as it would be) to agree, that some part of the expense should be
borne by the Organization, then such expense would form part of the expenses
of the Organization and would fall to be apportioned by the General
Assembly under Article 17. It is difficult to see how it could have been
contemplated that all potential expenses could be envisaged in such
agreements concluded perhaps long in advance. Indeed, the difficulty or
impossibility of anticipating the entire financial impact of enforcement
measures on Member States is brought out by the terms of Article 50 which
provides that a State, whether a Member of the United Nations or not, "which
finds itself confronted with special economic problems arising from the
carrying out of those [preventive or enforcement] measures, shall have [p
167] the right to consult the Security Council with regard to a solution of
those problems". Presumably in such a case the Security Council might
determine that the overburdened State was entitled to some financial
assistance; such financial assistance, if afforded by the Organization, as
it might be, would clearly constitute part of the "expenses of the
Organization". The economic problems could not have been covered in advance
by a negotiated agreement since they would be unknown until after the event
and in the case of non-Member States, which are also included in Article 50,
no agreement at all would have been negotiated under Article 43.
Moreover, an argument which insists that all measures taken for the
maintenance of international peace and security must be financed through
agreements concluded under Article 43, would seem to exclude the possibility
that the Security Council might act under some other Article of the Charter.
The Court cannot accept so limited a view of the powers of the Security
Council under the Charter. It cannot be said that the Charter has left the
Security Council impotent in the face of an emergency situation when
agreements under Article 43 have not been concluded.
Articles of Chapter VII of the Charter speak of "situations" as well as
disputes, and it must lie within the power of the Security Council to police
a situation even though it does not resort to enforcement action against a
State. The costs of actions which the Security Council is authorized to take
constitute "expenses of the Organization within the meaning of Article 17,
paragraph 2".
***
The Court has considered the general problem of the interpretation of
Article 17, paragraph 2, in the light of the general structure of the
Charter and of the respective functions assigned by the Charter to the
General Assembly and to the Security Council, with a view to determining the
meaning of the phrase "the expenses of the Organization". The Court does not
find it necessary to go further in giving a more detailed definition of such
expenses. The Court will, therefore, proceed to examine the expenditures
enumerated in the request for the advisory opinion. In determining whether
the actual expenditures authorized constitute "expenses of the Organization
within the meaning of Article 17, paragraph 2, of the Charter", the Court
agrees that such expenditures must be tested by their relationship to the
purposes of the United Nations in the sense that if an expenditure were made
for a purpose which is not one of the purposes of the United Nations, it
could not be considered an "expense of the Organization".
The purposes of the United Nations are set forth in Article 1 of the
Charter. The first two purposes as stated in paragraphs I [p 168] and 2, may
be summarily described as pointing to the goal of international peace and
security and friendly relations. The third purpose is the achievement of
economic, social, cultural and humanitarian goals and respect for human
rights. The fourth and last purpose is: "To be a center for harmonizing the
actions of nations in the attainment of these common ends."
The primary place ascribed to international peace and security is natural,
since the fulfilment of the other purposes will be dependent upon the
attainment of that basic condition. These purposes are broad indeed, but
neither they nor the powers conferred to effectuate them are unlimited.
Save as they have entrusted the Organization with the attainment of these
common ends, the Member States retain their freedom of action. But when the
Organization takes action which warrants the assertion that it was
appropriate for the fulfilment of one of the stated purposes of the United
Nations, the presumption is that such action is not ultra vires the
Organization.
If it is agreed that the action in question is within the scope of the
functions of the Organization but it is alleged that it has been initiated
or carried out in a manner not in conformity with the division of functions
among the several organs which the Charter prescribes, one moves to the
internal plane, to the internal structure of the Organization. If the action
was taken by the wrong organ, it was irregular as a matter of that internal
structure, but this would not necessarily mean that the expense incurred was
not an expense of the Organization. Both national and international law
contemplate cases in which the body corporate or politic may be bound, as
to third parties, by an ultra vires act of an agent.
In the legal systems of States, there is often some procedure for
determining the validity of even a legislative or governmental act, but no
analogous procedure is to be found in the structure of the United Nations.
Proposals made during the drafting of the Charter to place the ultimate
authority to interpret the Charter in the International Court of Justice
were not accepted; the opinion which the Court is in course of rendering is
an advisory opinion. As anticipated in 1945, therefore, each organ must, in
the first place at least, determine its own jurisdiction. If the Security
Council, for example, adopts a resolution purportedly for the maintenance of
international peace and security and if, in accordance with a mandate or
authorization in such resolution, the Secretary-General incurs financial
obligations, these amounts must be presumed to constitute "expenses of the
Organization".
The Financial Regulations and Rules of the United Nations, adopted by the
General Assembly, provide:
"Regulation 4.1: The appropriations voted by the General Assembly shall
constitute an authorization to the Secretary-[p 169]General to incur
obligations and make payments for the purposes for which the appropriations
were voted and up to the amounts so voted."
Thus, for example, when the General Assembly in resolution 1619 (XV)
included a paragraph reading:
"3. Decides to appropriate an amount of $100 million for the operations of
the United Nations in the Congo from I January to 31 October 1961",
this constituted an authorization to the Secretary-General to incur certain
obligations of the United Nations just as clearly as when in resolution 1590
(XV) the General Assembly used this language:
"3. Authorizes the Secretary-General ... to incur commitments in 1961 for
the United Nations operations in the Congo up to the total of $24
million..."
On the previous occasion when the Court was called upon to consider Article
17 of the Charter, the Court found that an award of the Administrative
Tribunal of the United Nations created an obligation of the Organization and
with relation thereto the Court said that:
"the function of approving the budget does not mean that the General
Assembly has an absolute power to approve or disapprove the expenditure
proposed to it; for some part of that expenditure arises out of obligations
already incurred by the Organization, and to this extent the General
Assembly has no alternative but to honour these engagements". (Effects of
awards of compensation made by the United Nations Administrative Tribunal,
I.C.J. Reports 1954,p.59)
Similarly, obligations of the Organization may be incurred by the
Secretary-General, acting on the authority of the Security Council or of the
General Assembly, and the General Assembly "has no alternative but to
honour these engagements".
The obligation is one thing: the way in which the obligation is met—that is
from what source the funds are secured—is another. The General Assembly may
follow any one of several alternatives: it may apportion the cost of the
item according to the ordinary scale of assessment; it may apportion the
cost according to some special scale of assessment; it may utilize funds
which are voluntarily contributed to the Organization; or it may find some
other method or combination of methods for providing the necessary funds. In
this context, it is of no legal significance whether, as a matter of
book-keeping or accounting, the General Assembly chooses to have the item in
question included under one of the standard' established sections of the
"regular" budget or whether it is separately listed in some special account
or fund. The significant fact is that the item is an expense of the
Organization and under [p 170] Article 17, paragraph 2, the General Assembly
therefore has authority to apportion it.
The reasoning which has just been developed, applied to the resolutions
mentioned in the request for the advisory opinion, might suffice as a basis
for the opinion of the Court. The Court finds it appropriate, however, to
take into consideration other arguments which have been advanced.
***
The expenditures enumerated in the request for an advisory opinion may
conveniently be examined first with reference to UNEF and then to ONUC. In
each case, attention will be paid first to the operations and then to the
financing of the operations.
In considering the operations in the Middle East, the Court must analyze the
functions of UNEF as set forth in resolutions of the General Assembly.
Resolution 998 (ES-I) of 4 November 1956 requested the Secretary-General to
submit a plan "for the setting up, with the consent of the nations
concerned, of an emergency international United Nations Force to secure and
supervise the cessation of hostilities in accordance with all the terms of"
the General Assembly's previous resolution 997 (ES-I) of 2 November 1956.
The verb "secure" as applied to such matters as halting the movement of
military forces and arms into the area and the conclusion of a cease-fire,
might suggest measures of enforcement, were it not that the Force was to be
set up "with the consent of the nations concerned".
In his first report on the plan for an emergency international Force the
Secretary-General used the language of resolution 998 (ES-I) in submitting
his proposals. The same terms are used in General Assembly resolution 1000
(ES-I) of 5 November in which operative paragraph 1 reads:
"Establishes a United Nations Command for an emergency international Force
to secure and supervise the cessation of hostilities in accordance with all
the terms of General Assembly resolution 997 (ES-I) of 2 November 1956."
This resolution was adopted without a dissenting vote. In his second and
final report on the plan for an emergency international Force of 6 November,
to Secretary-General, in paragraphs 9 and 10, stated:
"While the General Assembly is enabled to establish the Force with the
consent of those parties which contribute units to the Force, it could not
request the Force to be stationed or operate on the territory of a given
country without the consent of the Govern-[p 171]-ment of that country. This
does not exclude the possibility that the Security Council could use such a
Force within the wider margins provided under Chapter VII of the United
Nations Charter. I would not for the present consider it necessary to
elaborate this point further, since no use of the Force under Chapter VII,
with the rights in relation to Member States that this would entail, has
been envisaged.
10. The point just made permits the conclusion that the setting up of the
Force should not be guided by the needs which would have existed had the
measure been considered as part of an enforcement action directed against a
Member country. There is an obvious difference between establishing the
Force in order to secure the cessation of hostilities, with a withdrawal of
forces, and establishing such a Force with a view to enforcing a withdrawal
of forces."
Paragraph 12 of the Report is particularly important because in resolution
1001 (ES-I) the General Assembly, again without a dissenting vote, "Concurs
in the definition of the functions of the Force as stated in paragraph 12 of
the Secretary-General's report". Paragraph 12 reads in part as follows:
"the functions of the United Nations Force would be, when a ceasefire is
being established, to enter Egyptian territory with the consent of the
Egyptian Government, in order to help maintain quiet during and after the
withdrawal of non-Egyptian troops, and to secure compliance with the other
terms established in the resolution of 2 November 1956. The Force obviously
should have no rights other than those necessary for the execution of its
functions, in co-operation with local authorities. It would be more than an
observers' corps, but in no way a military force temporarily controlling
the territory in which it is stationed; nor, moreover, should the Force have
military functions exceeding those necessary to secure peaceful conditions
on the assumption that the parties to the conflict take all necessary steps
for compliance with the recommendations of the General Assembly."
It is not possible to find in this description of the functions of UNEF, as
outlined by the Secretary-General and concurred in by the General Assembly
without a dissenting vote, any evidence that the Force was to be used for
purposes of enforcement. Nor can such evidence be found in the subsequent
operations of the Force, operations which did not exceed the scope of the
functions ascribed to it.
It could not therefore have been patent on the face of the resolution that
the establishment of UNEF was in effect "enforcement action" under Chapter
VII which, in accordance with the Charter, could be authorized only by the
Security Council.
On the other hand, it is apparent that the operations were undertaken to
fulfil a prime purpose of the United Nations, that is, to [p 172] promote
and to maintain a peaceful settlement of the situation. This being true, the
Secretary-General properly exercised the authority given him to incur
financial obligations of the Organization and expenses resulting form such
obligations must be considered "expenses of the Organization within the
meaning of Article 17, paragraph 2".
Apropos what has already been said about the meaning of the word "action" in
Article 11 of the Charter, attention may be called to the fact that
resolution 997 (ES-I), which is chronologically the first of the resolutions
concerning the operations in the Middle East mentioned in the request for
the advisory opinion, provides in paragraph 5:
"Requests the Secretary-General to observe and report promptly on the
compliance with the present resolution to the Security Council and to the
General Assembly, for such further action as they may deem appropriate in
accordance with the Charter."
The italicized words reveal an understanding that either of the two organs
might take "action" in the premises. Actually, as one knows, the "action"
was taken by the General Assembly in adopting two days later without a
dissenting vote, resolution 998 (ES-I) and, also without a dissenting vote,
within another three days, resolutions 1000 (ES-I) and 1001 (ES-I), all
providing for UNEF.
The Court notes that these "actions" may be considered "measures"
recommended under Article 14, rather than "action" recommended under
Article 11. The powers of the General Assembly stated in Article 14 are not
made subject to the provisions of Article 11, but only of Article 12.
Furthermore, as the Court has already noted, the word "measures" implies
some kind of action. So far as concerns the nature of the situations in the
Middle East in 1956, they could be described as "likely to impair...
friendly relations among nations", just as well as they could be considered
to involve "the maintenance of international peace and security". Since the
resolutions of the General Assembly in question do not mention upon which
article they are based, and since the language used in most of them might
imply reference to either Article 14 or Article 11, it cannot be excluded
that they were based upon the former rather than the latter article.
***
The financing of UNEF presented perplexing problems and the debates on these
problems have even led to the view that the General Assembly never, either
directly or indirectly, regarded the [p 173] expenses of UNEF as "expenses
of the Organization within the meaning of Article 17, paragraph 2, of the
Charter". With this interpretation the Court cannot agree. In paragraph 15
of his second and final report on the plan for an emergency international
Force of 6 November 1956, the Secretary-General said that this problem
required further study. Provisionally, certain costs might be absorbed by a
nation providing a unit, "while all other costs should be financed outside
the normal budget of the United Nations". Since it was "obviously
impossible to make any estimate of the costs without a knowledge of the size
of the corps and the length of its assignment", the "only practical course
... would be for the General Assembly to vote a general authorization for
the cost of the Force on the basis of general principles such as those here
suggested".
Paragraph 5 of resolution 1001 (ES-I) of 7 November 1956 states that the
General Assembly "Approves provisionally the basic rule concerning the
financing of the Force laid down in paragraph 15 of the Secretary-General's
report".
In an oral statement to the plenary meeting of the General Assembly on 26
November 1956, the Secretary-General said:
"... I wish to make it equally clear that while funds received and payments
made with respect to the Force are to be considered as coming outside the
regular budget of the Organization, the operation is essentially a United
Nations responsibility, and the Special Account to be established must,
therefore, be construed as coming within the meaning of Article 17 of the
Charter".
At this same meeting, after hearing this statement, the General Assembly in
resolution 1122 (XI) noted that it had "provisionally approved the
recommendations made by the Secretary-General concerning the financing of
the Force". It then authorized the Secretary-General "to establish a United
Nations Emergency Force Special Account to which funds received by the
United Nations, outside the regular budget, for the purpose of meeting the
expenses of the Force shall be credited and from which payments for this
purpose shall be made". The resolution then provided that the initial amount
in the Special Account should be $10 million and authorized the
Secretary-General "pending the receipt of funds for the Special Account, to
advance from the Working Capital Fund such sums as the Special Account may
require to meet any expenses chargeable to it". The establishment of a
Special Account does not necessarily mean that the funds in it are not to be
derived from contributions of Members as apportioned by the General
Assembly.[p 174]
The next of the resolutions of the General Assembly to be considered is
1089 (XI) of 21 December 1956, which reflects the uncertainties and the
conflicting views about financing UNEF. The divergencies are duly noted and
there is ample reservation concerning possible future action, but operative
paragraph 1 follows the recommendation of the Secretary-General "that the
expenses relating to the Force should be apportioned in the same manner as
the expenses of the Organization". The language of this paragraph is clearly
drawn from Article 17:
"1. Decides that the expenses of the United Nations Emergency Force, other
than for such pay, equipment, supplies and services as may be furnished
without charge by Governments of Member States, shall be borne by the United
Nations and shall be apportioned among the Member States, to the extent of
$10 million, in accordance with the scale of assessments adopted by the
General Assembly for contributions to the annual budget of the Organization
for the financial year 1957;"
This resolution, which was adopted by the requisite two-thirds majority,
must have rested upon the conclusion that the expenses of UNEF were
"expenses of the Organization" since otherwise the General Assembly would
have had no authority to decide that they "shall be borne by the United
Nations" or to apportion them among the Members. It is further significant
that paragraph 3 of this resolution, which established a study committee,
charges this committee with the task of examining "the question of the
apportionment of the expenses of the Force in excess of $10 million ... and
the principle or the formulation of scales of contributions different from
the scale of contributions by Member States to the ordinary budget for
1957". The italicized words show that it was not contemplated that the
Committee would consider any method of meeting these expenses except through
some form of apportionment although it was understood that a different
scale might be suggested.
The report of this study committee again records differences of opinion but
the draft resolution which it recommended authorized further expenditures
and authorized the Secretary-General to advance funds from the Working
Capital Fund and to borrow from other funds if necessary; it was adopted as
resolution 1090 (XI) by the requisite two-thirds majority on 27 February
1957. In paragraph 4 of that resolution, the General Assembly decided that
it would at its twelfth session "consider the basis for financing any costs
of the Force in excess of $10 million not covered by voluntary
contributions".
Resolution 1151 (XII) of 22 November 1957, while contemplating the receipt
of more voluntary contributions, decided in paragraph 4 that the expenses
authorized "shall be borne by the Members of the United Nations in
accordance with the scales of assessments [p 175] adopted by the General
Assembly for the financial years 1957 and 1958 respectively".
Almost a year later, on 14 November 1958, in resolution 1263 (XIII) the
General Assembly, while "Noting with satisfaction the effective way in which
the Force continues to carry out its function", requested the Fifth
Committee "to recommend such action as may be necessary to finance this
continuing operation of the United Nations Emergency Force".
After further study, the provision contained in paragraph 4 of the
resolution of 22 November 1957 was adopted in paragraph 4 of resolution 1337
(XIII) of 13 December 1958. Paragraph 5 of that resolution requested "the
Secretary-General to consult with the Governments of Member States with
respect to their views concerning the manner of financing the Force in the
future, and to submit a report together with the replies to the General
Assembly at its fourteenth session". Thereafter a new plan was worked out
for the utilization of any voluntary contributions, but resolution 1441
(XIV) of 5 December 1959, in paragraph 2: "Decides to assess the amount of
$20 million against all Members of the United Nations on the basis of the
regular scale of assessments" subject to the use of credits drawn from
voluntary contributions. Resolution 1575 (XV) of 20 December 1960 is
practically identical.
The Court concludes that, from year to year, the expenses of UNEF have been
treated by the General Assembly as expenses of the Organization within the
meaning of Article 17, paragraph 2, of the Charter.
***
The operations in the Congo were initially authorized by the Security
Council in the resolution of 14 July 1960 which was adopted without a
dissenting vote. The resolution, in the light of the appeal from the
Government of the Congo, the report of the Secretary-General and the debate
in the Security Council, was clearly adopted with a view to maintaining
international peace and security. However, it is argued that that
resolution has been implemented, in violation of provisions of the Charter
inasmuch as under the Charter it is the Security Council that determines
which States are to participate in carrying out decisions involving the
maintenance of international peace and security, whereas in the case of the
Congo the Secretary-General himself determined which States were to
participate with their armed forces or otherwise.
By paragraph 2 of the resolution of 14 July 1960 the Security Council
"Decides to authorize the Secretary-General to take the necessary steps, in
consultation with the Government of the Repub-lic of the Congo, to provide
the Government with such military assistance as may be necessary". Paragraph
3 requested the [p 176] Secretary-General "to report to the Security Council
as appro-priate". The Secretary-General made his first report on 18 July and
in it informed the Security Council which States he had asked to contribute
forces or materiel, which ones had complied, the size of the units which had
already arrived in the Congo (a total of some 3,500 troops), and some detail
about further units expected.
On 22 July the Security Council by unanimous vote adopted a further
resolution in which the preamble states that it had considered this report
of the Secretary-General and appreciated "the work of the Secretary-General
and the support so readily and so speedily given to him by all Member States
invited by him to give assistance". In operative paragraph 3, the Security
Council "Commends the Secretary-General for the prompt action he has taken
to carry out resolution S/4387 of the Security Council, and for his first
report".
On 9 August the Security Council adopted a further resolution without a
dissenting vote in which it took note of the second report and of an oral
statement of the Secretary-General and in operative paragraph 1: "Confirms
the authority given to the Secretary-General by the Security Council
resolutions of 14 July and 22 July 1960 and requests him to continue to
carry out the responsibility placed on him thereby". This emphatic
ratification is further supported by operative paragraphs 5 and 6 by which
all Member States were called upon "to afford mutual assistance" and the
Secretary-General was requested "to implement this resolution and to report
further to the Council as appropriate".
The Security Council resolutions of 14 July, 22 July and 9 August 1960 were
noted by the General Assembly in its resolution 1474 (ES-IV) of 20
September, adopted without a dissenting vote, in which it "fully supports"
these resolutions. Again without a dissenting vote, on 21 February 1961 the
Security Council reaffirmed its three previous resolutions "and the General
Assembly resolution 1474 (ES-IV) of 20 September 1960" and reminded "all
States of their obligations under these resolutions".
Again without a dissenting vote on 24 November 1961 the Security Council,
once more recalling the previous resolutions, reaffirmed "the policies and
purposes of the United Nations with respect to the Congo (Leopoldville) as
set out" in those resolutions. Operative paragraphs 4 and 5 of this
resolution renew the authority to the Secretary-General to continue the
activities in the Congo.
In the light of such a record of reiterated consideration, confirmation,
approval and ratification by the Security Council and by the General
Assembly of the actions of the Secretary-General in [p 177] implementing the
resolution of 14 July 1960, it is impossible to reach the conclusion that
the operations in question usurped or impinged upon the prerogatives
conferred by the Charter on the Security Council. The Charter does not
forbid the Security Council to act through instruments of its own choice:
under Article 29 it "may establish such subsidiary organs as it deems
necessary for the performance of its functions"; under Article 98 it may
entrust "other functions" to the Secretary-General.
It is not necessary for the Court to express an opinion as to which article
or articles of the Charter were the basis for the resolutions of the
Security Council, but it can be said that the operations of ONUC did not
include a use of armed force against a State which the Security Council,
under Article 39, determined to have committed an act of aggression or to
have breached the peace. The armed forces which were utilized in the Congo
were not authorized to take military action against any State. The operation
did not involve "preventive or enforcement measures" against any State under
Chapter VII and therefore did not constitute "action" as that term is used
in Article 11.
For the reasons stated, financial obligations which, in accordance with the
clear and reiterated authority of both the Security Council and the General
Assembly, the Secretary-General incurred on behalf of the United Nations,
constitute obligations of the Organization for which the General Assembly
was entitled to make provision under the authority of Article 17.
***
In relation to ONUC, the first action concerning the financing of the
operation was taken by the General Assembly on 20 December 1960, after the
Security Council had adopted its resolutions of 14 July, 22 July and 9
August, and the General Assembly had adopted its supporting resolution of 20
September. This resolution 1583 (XV) of 20 December referred to the report
of the Secretary-General on the estimated cost of the Congo operations from
14 July to 31 December 1960, and to the recommendations of the Advisory
Committee on Administrative and Budgetary Questions. It decided to establish
an ad hoc account for the expenses of the United Nations in the Congo. It
also took note of certain waivers of cost claims and then decided to
apportion the sum of $48.5 million among the Member States "on the basis of
the regular scale of assessment" subject to certain exceptions. It made this
decision because in the preamble it had already recognized:
“that the expenses involved in the United Nations operations in the Congo
for 1960 constitute 'expenses of the Organization' within [p 178] the
meaning of Article 17, paragraph 2, of the Charter of the United Nations and
that the assessment thereof against Member States creates binding legal
obligations on such States to pay their assessed shares”.
By its further resolution 1590 (XV) of the same day, the General Assembly
authorized the Secretary-General "to incur commitments in 1961 for the
United Nations operations in the Congo up to the total of $24 million for
the period from 1 January to 31 March 1961". On 3 April 1961, the General
Assembly authorized the Secretary-General to continue until 21 April "to
incur commitments for the United Nations operations in the Congo at a level
not to exceed §8 million per month".
Importance has been attached to the statement included in the preamble of
General Assembly resolution 1619 (XV) of 21 April 1961 which reads:
"Bearing in mind that the extraordinary expenses for the United Nations
operations in the Congo are essentially different in nature from the
expenses of the Organization under the regular budget and that therefore a
procedure different from that applied in the case of the regular budget is
required for meeting these extraordinary expenses."
However, the same resolution in operative paragraph 4:
"Decides further to apportion as expenses of the Organization the amount of
$100 million among the Member States in accordance with the scale of
assessment for the regular budget subject to the provisions of paragraph 8
below [paragraph 8 makes certain adjust-ments for Member States assessed at
the lowest rates or who receive certain designated technical assistance],
pending the establishment of a different scale of assessment to defray the
extraordinary expenses of the Organization resulting from these operations."
Although it is not mentioned in the resolution requesting the advisory
opinion, because it was adopted at the same meeting of the General Assembly,
it may be noted that the further resolution 1732 (XVI) of 20 December 1961
contains an identical paragraph in the preamble and a comparable operative
paragraph 4 on apportioning $80 million.
The conclusion to be drawn from these paragraphs is that the General
Assembly has twice decided that even though certain expenses are
"extraordinary" and "essentially different" from those under the "regular
budget", they are none the less "expenses of the Organization" to be
apportioned in accordance with the power granted to the General Assembly by
Article 17, paragraph 2. This conclusion is strengthened by the concluding
clause of paragraph 4 of the two resolutions just cited which states that
the decision therein to use the scale of assessment already adopted for the
[p 179] regular budget is made "pending the establishment of a different
scale of assessment to defray the extraordinary expenses". The only
alternative—and that means the "different procedure"—contemplated was
another scale of assessment and not some method other than assessment.
"Apportionment" and "assessment" are terms which relate only to the General
Assembly's authority under Article 17.
***
At the outset of this opinion, the Court pointed out that the text of
Article 17, paragraph 2, of the Charter could lead to the simple conclusion
that "the expenses of the Organization" are the amounts paid out to defray
the costs of carrying out the purposes of the Organization. It was further
indicated that the Court would examine the resolutions authorizing the
expenditures referred to in the request for the advisory opinion in order to
ascertain whether they were incurred with that end in view. The Court has
made such an examination and finds that they were so incurred. The Court has
also analyzed the principal arguments which have been advanced against the
conclusion that the expenditures in question should be considered as
"expenses of the Organization within the meaning of Article 17, paragraph 2,
of the Charter of the United Nations", and has found that these arguments
are unfounded. Consequently, the Court arrives at the conclusion that the
question submitted to it in General Assembly resolution 1731 (XVI) must be
answered in the affirmative.
For these reasons,
The Court is of opinion,
by nine votes to five,
that the expenditures authorized in General Assembly resolutions 1583 (XV)
and 1590 (XV) of 20 December 1960, 1595 (XV) of 3 April 1961, 1619 (XV) of
21 April 1961 and 1633 (XVI) of 30 October 1961 relating to the United
Nations operations in the Congo undertaken in pursuance of the Security
Council resolutions of 14 July, 22 July and 9 August 1960 and 21 February
and 24 November 1961, and General Assembly resolutions 1474 (ES-IV) of 20
September 1960 and 1599 (XV), 1600 (XV) and 1601 (XV) of 15 April 1961, and
the expenditures authorized in General Assembly resolutions 1122 (XI) of 26
November 1956, 1089 (XI) of 21 December 1956,1090 (XI) of 27 February 1957,
1151 (XII) of 22 November 1957, 1204 (XII) of 13 December 1957, 1337 (XIII)
of 13 December 1958,1441 (XIV) of 5 December 1959 and 1575 (XV) of 20
December 1960 relating to the operations of the United Nations Emergency [p
180] Force undertaken in pursuance of General Assembly resolutions 997
(ES-I) of 2 November 1956, 998 (ES-I) and 999 (ES-I) of 4 November 1956,
1000 (ES-I) of 5 November 1956, 1001 (ES-I) of 7 November 1956, 1121 (XI) of
24 November 1956 and 1263 (XIII) of 14 November 1958, constitute "expenses
of the Organization" within the meaning of Article 17, paragraph 2, of the
Charter of the United Nations.
Done in English and in French, the English text being authoritative, at the
Peace Palace, The Hague, this twentieth day of July, one thousand nine
hundred and sixty-two, in two copies, one of which will be placed in the
archives of the Court and the other transmitted to the Secretary-General of
the United Nations.
(Signed) B. Winiarski,
President.
(Signed) Garnier-Coignet,
Registrar.
Judge Spiropoulos makes the following declaration:
While accepting the Court's conclusion, I cannot agree with all the views
put forward in the Advisory Opinion. In particular, I consider that the
affirmative reply to the request for an opinion is justified by the argument
that the resolutions of the General Assembly authorizing the financing of
the United Nations operations in the Congo and the Middele East, being
resolutions designed to meet expenditure concerned with the fulfilment of
the purposes of the United Nations, which were adopted by two-thirds of the
Members of the General Assembly present and voting, create obligations for
the Members of the United Nations.
I express no opinion as to the conformity with the Charter of the
resolutions relating to the United Nations operations in the Congo and the
Middle East, for the following reasons:
The French delegation had proposed to the General Assembly the acceptance of
an amendment to the text, finally adopted by it, according to which
amendment the question put to the Court would have become: "Were the
expenditures authorized, etc. ... decided on in conformity with the
provisions of the Charter and, if so, do they constitute 'expenses of the
Organization' within the meaning of Article 17, paragraph 2, of the Charter
of the United Nations?"
On 20 December 1961, in the course of the meeting of the General Assembly,
this amendment was accompanied by a statement by the [p 181] French
delegation justifying the submission of the French amendment and which,
among other things, said:
"In the opinion of the French delegation, the question put to the Court does
not enable the latter to give a clear-cut opinion on the juridical basis for
the financial obligations of Member States. The Court cannot, in fact,
appraise the scope of those resolutions without determining what obligations
they may create for Member States under the Charter.
It is for this reason that the French delegation is submitting to the
Assembly an amendment [A/L. 378] the adoption of which would enable the
Court to determine whether or not the Assembly resolutions concerning the
financial implications of the United Nations operations in the Congo and the
Middle East are in conformity with the Charter. Only thus, if the matter is
referred to the Court, will it be done in such a way as to take into account
the scope and nature of the problems raised in the proposal to request an
opinion."
The French amendment was rejected.
The rejection of the French amendment by the General Assembly seems to me to
show the desire of the Assembly that the conformity or non-conformity of the
decisions of the Assembly and of the Security Council concerning the United
Nations operations in the Congo and the Middle East should not be examined
by the Court. It seems natural, indeed, that the General Assembly should not
have wished that the Court should pronounce on the validity of resolutions
which have been applied for several years. In these circumstances, I have
felt bound to refrain from pronouncing on the conformity with the Charter of
the resolutions relating to the United Nations operations in the Congo and
the Middle East.
Judges Sir Percy Spender, Sir Gerald Fitzmaurice and Morelli append to the
Opinion of the Court statements of their Separate Opinions.
President Winiarski and Judges Basdevant, Moreno Quintana, Koretsky and
Bustamante y Rivero append to the Opinion of the Court statements of their
Dissenting Opinions.
(Initialled) B. W.
(Initialled) G.-C.
[p 182]
SEPARATE OPINION OF JUDGE SIR PERCY SPENDER
I agree that the question should be answered in the affirmative.
The Court is called upon to answer a question which, exceedingly-important
though it is, lies within a comparatively limited compass.
That question is whether certain particularized expenditure— money spent or
to be spent—authorized by certain specified resolutions of the General
Assembly, constitute "expenses of the Organization" within the meaning of
Article 17 (2) of the Charter.
Whilst the form in which the question has been framed may not in any manner
inhibit the Court from considering any aspect of the Charter, or any part of
the record presented to it, to the extent it considers relevant, the opinion
the Court gives ought not, in my view, go beyond the limits of what is
reasonably necessary to permit it to answer the question. To go beyond these
limits is I think an excess of function.
For my part I have not found it necessary to express any opinion upon the
validity or regularity of the resolutions pursuant to which the operations
in the Congo and the Middle East were undertaken. A conclusion thereon would
not, in my view, affect the answer which should be given to the question.
Article 17 has a provenance and field of its own. It is the only Article in
the Charter which deals with the budgetary affairs and the expenses of the
Organization. Neither the word "budget" in Article 17 (1) nor the word
"expenses" in Article 17 (2) is qualified in any manner in the text, nor
elsewhere by anything appearing in the Charter.
The word "budget" in Article 17 (1) covers all finance requirements of the
Organization and the word "expenses" in Article 17 (2) covers all
expenditures which may be incurred on behalf of the Organization, which give
effect to the purposes of the United Nations. There is, upon the proper
interpretation of Article 17, no legal basis for confining these words to
what has been described as "normal", "ordinary", "administrative" or
"essential" costs and expenditure, whatever precisely these terms may
denote. The expenditures referred to in the question put to the Court were
of a character which could qualify them as incurred in order to give effect
to the purposes of the Organization. It was in these circumstances for the
General Assembly, and for it alone, to deter-mine, as it did, whether these
expenditures did qualify as those of the Organization and to deal with them
pursuant to its powers under Article 17 (2). [p 183]
Once the General Assembly has passed upon what are the expenses of the
Organization, and it is apparent that the expenditure incurred and to be
incurred on behalf of the Organization is in furtherance of its purposes,
their character as such and any apportionment thereof made by the General
Assembly under Article 17 (2) of the Charter cannot legally be challenged by
any Member State. Its decision may not be impugned and becomes binding upon
each Member State. It would be anarchic of any interpretation of the
Charter were each Member State its own interpreter of whether this or that
particular expense was an expense of the Organization, within the meaning
of Article 17 (2), and could, by its own interpretation, be free to refuse
to comply with the decision of the General Assembly.
It is, moreover, evident that once the Secretary-General, who, under Article
98 of the Charter, is bound to perform such functions as the General
Assembly or the Security Council may entrust him with, is called upon by
either organ to discharge certain functions, as he was in respect to the
operations in both the Congo and the Middle East, and in discharging them he
engages the credit of the Organization and on its behalf incurs financial
obligations, then, unless the resolution under which he acts, or what he
does, is unconnected with the furtherance of the purposes of the
Organization, the moneys involved may properly be dealt with by the
General Assembly as "expenses of the Organization". Once they have been,
the action of the General Assembly would not be open to challenge by a
Member State even if the resolutions under which he was called upon to act
were not in conformity with the Charter and even if he should exceed the
authority conferred upon him. He is the Chief Administrative Officer of the
Organization and director of the Secretariat which itself is an organ of
the United Nations. If, acting within the apparent scope of his authority,
he engages the credit of the Organization, the General Assembly has, in my
view, full power to acknowledge the financial obligations involved as
"expenses of the Organization" within the meaning of Article 17 (2) and act
accordingly.
Subject to the above and to certain general observations that I wish to make
on the discharge by the Court of its function of interpreting the Charter, I
associate myself with the opinion of the Court.
***
The interpretation given to Article 17 and in particular to subparagraph
(2) thereof accords a wide power to the General Assembly. [p 184]
It is however nothing to the point to contend that so to interpret Article
17 (2) confers an authority so extensive that it could lead the General
Assembly, by virtue of its control over the finances of the Organization, to
extend, in practice, its own competence in other fields in disregard of the
provisions of the Charter. Whatever the ambit of power conferred upon any
organ of the United Nations, that may be ascertained only from the terms of
the Charter itself. Once the Court has determined the interpretation it must
accord to a provision of the Charter on which it is called upon to express
its opinion, its function is discharged. Any political consequences which
may flow from its decision is not a matter for its concern.
***
General Observations on the Interpretation of the Charter
Words communicate their meaning from the circumstances in which they are
used. In a written instrument their meaning primarily is to be ascertained
from the context, the setting, in which they are found.
The cardinal rule of interpretation that this Court and its predecessor has
stated should be applied is that words are to be read, if they may so be
read, in their ordinary and natural sense. If so read they make sense, that
is the end of the matter. If, however, so read they are ambiguous or lead to
an unreasonable result, then and then only must the Court, by resort to
other methods of interpretation, seek to ascertain what the parties really
meant when they used the words under consideration (Competence of the
General Assembly regarding Admission to the United Nations, I.C.J. Reports
1950, p. 8, and Polish Postal Service in Danzig, P.C.I.J., Series B, No. 11,
p. 39).
This injunction is sometimes a counsel of perfection. The ordinary and
natural sense of words may at times be a matter of considerable difficulty
to determine. What is their ordinary and natural sense to one may not be so
to another. The interpreter not uncommonly has, what has been described as,
a personal feeling towards certain words and phrases. What makes sense to
one may not make sense to another. Ambiguity may lie hidden in the plainest
and most simple of words even in their natural and ordinary meaning. Nor is
it always evident by what legal yardstick words read in their natural and
ordinary sense may be judged to produce an unreasonable result.
Moreover the intention of the parties at the time when they entered into an
engagement will not always—depending upon the nature and subject-matter of
the engagement—have the same im-portance. In particular in the case of a
multilateral treaty such as [p 185] the Charter the intention of its
original Members, except such as may be gathered from its terms alone, is
beset with evident difficulties. Moreover, since from its inception it was
contemplated that other States would be admitted to membership so that the
Organization would, in the end, comprise "all other peace-loving States
which accept the obligations contained in the Charter" (Article 4), the
intention of the framers of the Charter appears less important than
intention in many other treaties where the parties are fixed and constant
and where the nature and subject-matter of the treaty is different. It is
hardly the intention of those States which originally framed the Charter
which is important except as that intention reveals itself in the text.
What is important is what the Charter itself provides; what—to use the words
of Article 4—is "contained in ... the Charter".
It is, I venture to suggest, perhaps safer to say that the meaning of words,
however described, depends upon subject-matter and the context in which they
are used.
***
In the interpretation of a multilateral treaty such as the Charter which
establishes a permanent international mechanism or organization to
accomplish certain stated purposes there are particular considerations to
which regard should, I think, be had.
Its provisions were of necessity expressed in broad and general terms. It
attempts to provide against the unknown, the unforeseen and, indeed, the
unforeseeable. Its text reveals that it was intended —subject to such
amendments as might from time to time be made to it—to endure, at least it
was hoped it would endure, for all time. It was intended to apply to varying
conditions in a changing and evolving world community and to a multiplicity
of unpredictable situations and events. Its provisions were intended to
adjust themselves to the ever changing pattern of international existence.
It established international machinery to accomplish its stated purposes.
It may with confidence be asserted that its particular provisions should
receive a broad and liberal interpretation unless the context of any
particular provision requires, or there is to be found elsewhere in the
Charter, something to compel a narrower and restricted interpretation.
The stated purposes of the Charter should be the prime consideration in
interpreting its text.
Despite current tendencies to the contrary the first task of the Court is to
look, not at the travaux préparatoires or the practice which hitherto has
been followed within the Organization, but at the terms of the Charter
itself. What does it provide to carry out its purposes?
If the meaning of any particular provision read in its context is
sufficiently clear to satisfy the Court as to the interpretation to be [p
186] given to it there is neither legal justification nor logical reason to
have recourse to either the travaux préparatoires or the practice followed
within the United Nations.
The Charter must, of course, be read as a whole so as to give effect to all
its terms in order to avoid inconsistency. No word, or provision, may be
disregarded or treated as superfluous, unless this is absolutely necessary
to give effect to the Charter's terms read as a whole.
***
The purpose pervading the whole of the Charter and dominating it is that of
maintaining international peace and security and to that end the taking of
effective collective measures for the prevention and removal of threats to
the peace.
Interpretation of the Charter should be directed to giving effect to that
purpose, not to frustrate it. If two interpretations are possible in
relation to any particular provision of it, that which is favourable to the
accomplishment of purpose and not restrictive of it must be preferred.
A general rule is that words used in a treaty should be read as having the
meaning they bore therein when it came into existence. But this meaning must
be consistent with the purposes sought to be achieved. Where, as in the case
of the Charter, the purposes are directed to saving succeeding generations
in an indefinite future from the scourge of war, to advancing the welfare
and dignity of man, and establishing and maintaining peace under
international justice for all time, the general rule above stated does not
mean that the words in the Charter can only comprehend such situations and
contingencies and manifestations of subject-matter as were within the minds
of the framers of the Charter (cf. Employment of Women during the Night,
P.C.I.J., Series A/B, No. 50, p. 377).
The wisest of them could never have anticipated the tremendous changes which
politically, militarily, and otherwise have occurred in the comparatively
few years which have elapsed since 1945. Few if any could have contemplated
a world in thraldom to atomic weapons on the scale of today, and the dangers
inherent in even minor and remote events to spark wide hostilities
imperilling both world peace and vast numbers of mankind. No comparable
human instrument in 1945 or today could provide against all the
contingencies that the future should hold. All that the framers of the
Charter reasonably could do was to set forth the purposes the organization
set up should seek to achieve, establish the organs to accomplish these
purposes and confer upon these organs powers in general terms. Yet these
general terms, unfettered by man's incapacity to foretell the future, may be
sufficient to meet the thrusts of a changing world. [p 187]
The nature of the authority granted by the Charter to each of its organs
does not change with time. The ambit or scope of the authority conferred
may nonetheless comprehend ever changing circumstances and conditions and
embrace, as history unfolds itself, new problems and situations which were
not and could not have been envisaged when the Charter came into being. The
Charter must accordingly be interpreted, whilst in no way deforming or
dislocating its language, so that the authority conferred upon the
Organization and its various organs may attach itself to new and
unanticipated situations and events.
All canons of interpretation, however valuable they may be, are but aids to
the interpreter. There are, as this Court's predecessor acknowledged, many
methods of interpretation (Territorial Juris-diction of the International
Commission on the River Oder, P.C.I.J., Series A, No. 23, p. 26). The
question whether an unforeseen, or extraordinary, or abnormal development or
situation, or matter relating thereto, falls within the authority accorded
to any of the organs of the Organization finds its answer in discharging the
essential task of all interpretation—ascertaining the meaning of the
relevant Charter provision in its context. The meaning of the text will be
illuminated by the stated purposes to achieve which the terms of the Charter
were drafted.
***
Practice within the United Nations—Its effect on or value as a criterion of
interpretation.
In the proceedings on this Advisory Opinion practice and usage within the
United Nations has been greatly relied upon by certain States, which have
availed themselves of the opportunity to present their views to the Court,
as establishing a criterion of interpretation of relevant Charter
provisions.
It was for example contended by one State that usages developed in the
practice of the United Nations have dealt with certain items of expenditure
as expenses of the Organization within the meaning of Article 17 (2) and
that such usages whether or not they could be said to have attained the
character of customary legal principle are relevant for the purposes of
interpreting the meaning and scope of resolutions adopted by the General
Assembly concerning specific questions. So usage within the United Nations,
it was urged, has sanctioned the inclusion in the budget expenses of the
Organization of items which related to other than the ordinary
administrative and routine duties of the Organization as, for example, those
connected with special peace-keeping operations and operations of a similar
[p 188] character initiated by either the General Assembly or the Security
Council.
Thus, so it was asserted, in practice it had been considered a normal and
usual procedure to include such operations in the regular budget which was
financed in accordance with Article 17 (2) of the Charter. Though objections
had from time to time been made to the inclusion of different items, the
General Assembly had not hesitated to overrule such objections and the
objecting States, it was claimed, had in the end acquiesced in the decisions
by paying their contributions under Article 17 (2). It was also contended
that the General Assembly and the Security Council had consistently pursued
a practice of considering the General Assembly competent to deal with a
matter transferred to it from the Security Council in the circumstances
defined by the Uniting for Peace Resolution 377 (V).
40
These practices were called in aid as relevant considerations in
interpreting both Article 17 (2) and Article 24 of the Charter. The
proposition advanced was that it is a general principle that a treaty
provision should be interpreted in the light of the subsequent conduct of
the contracting parties—words which echo those to be found in the Advisory
Opinion of the Permanent Court in Interpretation of the Treaty of Lausanne
(P.C.I.J., Series B, No. 12, 1925, p. 24)—and that the uniform practice
pursued by the organs of the United Nations should be equated with the
"subsequent conduct" of contracting parties as in the case of a bilateral
treaty.
Similar contentions were made by other States. The practice of the parties
in interpreting a constitutive instrument, it was submitted, was a guide to
that instrument's true meaning. The practice of the Security Council, as
well as that of the General Assembly, demonstrated, it was said, that the
power to approve and apportion the budget of the United Nations was
recognized to be the province of the General Assembly alone. Furthermore, by
adopting certain resolutions the 'Security Council and the General Assembly
construed the Charter as granting the powers thus exercised, that these
organs had the competence to interpret such parts of the Charter as were
applicable to their respective and particular functions, and accordingly,
that the interpretations such organs have in practice given to their
respective powers are entitled to the greatest weight in any subsequent
judicial review to determine the meaning and extent of those functions.
The contention of one State went further. The claim was made that any
interpretation of the Charter by a United Nations organ [p 189] should be
upheld so long as it is an interpretation which is not expressly
inconsistent with the Charter and that since any such interpretation would
reflect the support of the majority of the Member States, and considering
the interpretation of the Charter which has been applied by the Assembly in
regard to financing the operation of the UNOC and UNEF, the Court should
give its advisory opinion in this case in the affirmative.
These contentions raise questions of importance which should not, I think,
be passed over in silence, particularly having regard to the extent to which
the Court itself has had recourse to practice within the United Nations from
which to draw sustenance for its interpretation of Charter provisions.
***
It is of course a general principle of international law that the subsequent
conduct of the parties to a bilateral—or a multilateral— instrument may
throw light on the intention of the parties at the time the instrument was
entered into and thus may provide a legitimate criterion of interpretation.
So the conduct of one party to such an instrument—or to a unilateral
instrument—may throw light upon its intentions when entering into it whilst
that of both—or all—parties may have considerable probative value in aid of
interpretation.
There is, however, as the late Judge Sir Hersch Lauterpacht has pointed out,
an element of artificiality in the principle, and care must be taken to
circumscribe its operation. This element of artificiality is greatly
magnified when the principle is sought to be extended from the field of
bilateral instruments to that of multilateral instruments of an organic
character and where the practice (or subsequent conduct) relied upon is
that, not of the parties to the instrument, but of an organ created
thereunder.
In any case subsequent conduct may only provide a criterion of
interpretation when the text is obscure, and even then it is necessary to
consider whether that conduct itself permits of only one inference
(Brazilian Loans Case, P.C.I.J., Series A/B, Nos. 20/21, p. 119). Except in
the case where a party is by its conduct precluded from relying upon a
particular interpretation, with which type of case we are not presently
concerned, it can hardly control the language or provide a criterion of
interpretation of a text which is not obscure.
I find difficulty in accepting the proposition that a practice pursued by
an organ of the United Nations may be equated with the [p 190] subsequent
conduct of parties to a bilateral agreement and thus afford evidence of
intention of the parties to the Charter (who have constantly been added to
since it came into force) and in that way or otherwise provide a criterion
of interpretation. Nor can I agree with a view sometimes advanced that a
common practice pursued by an organ of the United Nations, though ultra
vires and in point of fact having the result of amending the Charter, may
nonetheless be effective as a criterion of interpretation.
***
The legal rationale behind what is called the principle of "subsequent
conduct" is I think evident enough. In essence it is a question of evidence,
its admissibility and value. Its roots are deeply embedded in the experience
of mankind.
A man enters into a compact usually between himself and another. The meaning
of that compact when entered into whether oral, or in writing, may well be
affected, even determined, by the manner in which both parties in practice
have carried it out.
That is evident enough. Their joint conduct expresses their common
understanding of what the terms of their compact, at the time they entered
into it, were intended to mean, and thus provides direct evidence of what
they did mean.
That conduct on the part of both parties to a treaty should be considered on
the same footing is incontestable. It provides a criterion of
interpretation.
It is however evident enough—despite a flimsy and questionable argument
based upon what appears in Iranian Oil Company (I.C.J. Reports 1952, pp.
106-107)—that the subsequent conduct of one party alone cannot be evidence
in its favour of a common understanding of the meaning intended to be given
to the text of a treaty. Its conduct could, under certain conditions to
which I have in the Case concerning the Temple of Preah Vihear (I.C.J.
Reports 1962, p. 128) made brief reference, preclude it as against the other
party to the treaty from alleging an interpretation contrary to that which
by its conduct it has represented to be the correct interpretation to be
placed upon the treaty. Short of conduct on its part amounting to
preclusion, it may also, if the other party to the treaty acknowledges that
the interpretation so placed upon it by the first party is correct, provide
evidence in favour of the first party, depending on the weight the
acknowledgement merits, and thus also provide a criterion of interpretation.
As in the field of municipal law, multilateral compacts were a later
development; as also were multilateral treaties in the field of
international law, particularly those of the organizational character of the
Charter. [p 191]
In the case of multilateral treaties the admissibility and value as evidence
of subsequent conduct of one or more parties thereto encounter particular
difficulties. If all the parties to a multilateral treaty where the parties
are fixed and constant, pursue a course of subsequent conduct in their
attitude to the text of the treaty, and that course of conduct leads to an
inference, and one inference only, as to their common intention and
understanding at the time they entered into the treaty as to the meaning of
its text, the probative value of their conduct again is manifest. If however
only one or some but not all of them by subsequent conduct interpret the
text in a certain manner, that conduct stands upon the same footing as the
unilateral conduct of one party to a bilateral treaty. The conduct of such
one or more could not of itself have any probative value or provide a
criterion for judicial interpretation.
Even where the course of subsequent conduct pursued by both parties to a
bilateral treaty or by all parties to a multilateral treaty are in accord
and that conduct permits of only one inference it provides a criterion of
interpretation only when, as has already been indicated, the text of the
treaty is obscure or ambiguous. It may, however, depending upon other
considerations not necessary to be here dealt with, provide evidence from
which to infer a new agreement with new rights and obligations between the
parties, in effect superimposed or based upon the text of the treaty and
amending the same. This latter aspect of subsequent conduct is irrelevant
for present consideration since no amendment of the Charter may occur except
pursuant to Article 108 of the Charter.
When we pass from multilateral treaties in which the parties thereto are
fixed and constant to multilateral treaties where the original parties
thereto may be added to in accordance with the terms of the treaty itself we
move into territory where the role and value of subsequent conduct as an
interpretive element is by no means evident.
The Charter provides the specific case with which we are concerned. The
original Members of the Charter number less than half the total number of
Member States. If the intention of the original Members of the United
Nations, at the time they entered into the Charter, is that which provides a
criterion of interpretation, then it is the subsequent conduct of those
Members which may be equated with the subsequent conduct of the parties to a
bilateral or multilateral treaty where the parties are fixed and constant.
This, it seems to me, could add a new and indeterminate dimension to the
rights and obligations of States that were not original Members and so were
not privy to the intentions of the original Members.
However this may be, it is not evident on what ground a practice
consistently followed by a majority of Member States not in fact [p 192]
accepted by other Member States could provide any criterion of
interpretation which the Court could properly take into consideration in
the discharge of its judicial function. The conduct of the majority in
following the practice may be evidence against them and against those who in
fact accept the practice as correctly interpreting a Charter provision, but
could not, it seems to me, afford any in their favour to support an
interpretation which by majority they have been able to assert.
***
It is not I think permissible to move the principle of subsequent conduct of
parties to a bilateral or multilateral treaty into another field and seek to
apply it, not to the parties to the treaty, but to an organ established
under the treaty.
My present view is that it is not possible to equate "subsequent conduct"
with the practice of an organ of the United Nations. Not only is such an
organ not a party to the Charter but the inescapable reality is that both
the General Assembly and the Security Council are but the mechanisms through
which the Members of the United Nations express their views and act. The
fact that they act through such an organ, where a majority rule prevails and
so determines the practice, cannot, it seems to me, give any greater
probative value to the practice established within that organ than it would
have as conduct of the Members that comprise the majority if pursued
outside of that organ.
The contention of the various States, that the practice followed by the
General Assembly and the Security Council in interpreting their functions
under the Charter has a particular probative value of its own, finds
authority, it is claimed, in the jurisprudence of this Court and its
predecessor.
It falls for consideration to what extent, if at all, this is so.
The cases which may be relied upon are few and, upon examination, they
throw little light upon the matter. The extent to which a practice pursued
by an organ of the United Nations may be had resort to by the Court, if at
all, as an aid to interpretation, has, I think, yet to receive deliberate
consideration by, and to be spelt out by, the Court.
In the Advisory Opinion of the Permanent Court in Competence of the
International Labour Organisation (P.C.I.J., Series B, No. 2 (1922), pp.
40-41) when dealing with a question of interpretation arising out of Part
XIII of the Treaty of Peace between the Allied [p 193] and Associated Powers
and Germany, the fact that the competence of the International Labour
Organisation to deal with the subject of agriculture had never been disputed
by the Contracting Parties might, the Court observed, if there had been any
ambiguity in the text (which the Court found did not exist), "suffice to
turn the scale". The Court in point of fact had already arrived at its
conclusion on the interpretation which should be given to the text; its
observation was accordingly obiter dicta. Moreover it was dealing with the
conduct of parties to the treaty. In any case from the nature of the Court's
observation in that case it must be evident that it has little if any
jurisprudential value on the matter presently being considered.
In the Advisory Opinion of the Permanent Court in Treaty of Lausanne
(Frontier between Turkey and Iraq) (P.C.I. J., 1925, Series B, No. 12, p.
24) advice was sought by the Council of the League of Nations on Article 3,
paragraph 2, of that Treaty. Although this was so, an examination of the
case will reveal that what the Court was directing its attention to was in
essence a dispute between Great Britain and Turkey in relation to the
frontier between the lastmentioned State and Iraq. In that case the Court
did concern itself with the subsequent conduct of the Parties but only with
the conduct of the Parties to that dispute. It examined the conduct of Great
Britain and Turkey. Again the Court in any case had already reached its
conclusion on the interpretation it should place upon the Article upon which
advice was sought. The meaning was "sufficiently clear" and thus what it
had to say in relation to the subsequent conduct of Great Britain and
Turkey was also obiter dicta.
The Court observed
"The facts subsequent to the conclusion of the Treaty of Lausanne can only
concern the Court in so far as they throw light upon the intention of the
Parties FN1—at the time of the conclusion of the Treaty."
------------------------------------------------------------------------------------------------------------FN1
This is clearly a reference to Great Britain and Turkey.
------------------------------------------------------------------------------------------------------------
It considered that the "attitude adopted by the British and Turkish
Governments" after the signature of the Treaty "is only valuable ... as an
indication of their views regarding the clause in question". The fact that
the British and Turkish representatives concurred in a certain unanimous
vote of the Council of the League on a particular matter showed that there
was no disagreement between "the Parties" as regards their obligation to
accept as definitive and binding the decision or recommendation to be made
by the Council. The fact that "the Parties" accepted beforehand the
Council's decision might, the Court observed, be regarded as confirming the
interpretation which in the Court's opinion flowed from the actual wording
of the Article. [p 194]
It hardly needs exposition to establish that this case provides no
foundation upon which to rest the contentions of the various States to which
reference has previously been made.
Nor does the Advisory Opinion of the Court in Status of South West Africa
(I.C.J. Report 1950, p. 128) where the Court said that
"Interpretations placed upon legal instruments by the parties to them though
not conclusive as to their meaning have considerable probative value when
they contain recognition by a party of its own obligations under an
instrument",
or the Brazilian Loans Case (P.C.I.J. (1929), Series A, Nos. 20/21, p.
119)—both of which cases were relied upon in support of the proposition that
the interpretation given by the General Assembly and the Security Council to
provisions of the Charter were entitled to the greatest weight in any
subsequent judicial review—carry the matter any further. In the former case
a common intention was found to exist—the interpretation that South Africa
was said to have placed upon the Charter (or its mandate) by its conduct
provided evidence against it. The latter case' has little if any relevance.
Having stated the principle of "subsequent conduct" in terms already
indicated the Court went on to say that there was indeed no ambiguity in the
text. The principle accordingly did not apply. The Court however, because of
arguments advanced in the course of the proceeding before it, was induced to
consider whether the bondholders' conduct provided any basis for an
inference that they—the bondholders—were of the opinion that they were not
entitled to payment on the basis of gold; in short whether their conduct
could provide evidence against them.
Finally there is the Advisory Opinion of this Court in Competence of the
General Assembly regarding Admission to the United Nations (Article 4 of the
Charter) (I.C.J. Reports 1950, p. 9) which the Court in the present case
accepts as authority for its reliance upon practice within the United
Nations to sustain its reasoning and which is usually relied upon in support
of the proposition that "subsequent conduct" is to be equated with a
practice pursued by the organs of the United Nations.
In that Advisory Opinion the Court would appear to have found support for
its conclusion already otherwise arrived at on the meaning of Article 4 of
the Charter. It had found "no difficulty in ascertaining the natural and
ordinary meaning of the words in question and no difficulty in giving
effect to them". But it appears to have found sustenance or satisfaction for
its conclusion in the fact that "the organs to which Article 4 entrusts the
judgment of the Organization have consistently interpreted the text" in the
manner [p 195] which it had concluded was its proper interpretation. Again,
whatever is the significance to be attached to this purely factual
observation on a coincidence, it was unnecessary and irrelevant to the
Court's opinion. The Court had already made it abundantly clear that it was
only when the words in their natural and ordinary meaning were ambiguous or
led to an unreasonable result, that it was permissible to resort to other
methods of interpretation. It thus confirmed the rule laid down in Case of
Brazilian Loans (ante), Serbian Loans (P.C.I. J., Series A, Nos. 20/21, p.
38) and International Labour Organisation (ante) that it is only where a
treaty is ambiguous that resort may be had "to the manner of performance in
order to ascertain the intention of the parties".
That being so it is not apparent what legal significance is to be attached
to the Court's observation. The fact stated added nothing to the Court's
reasoning. Whether the General Assembly and the Security Council had
consistently interpreted Article 4 in the sense in which the Court did or
had consistently interpreted it in a different sense was quite irrelevant to
the Court's conclusion. On any rational examination of this case, it
provides, I believe, no authority, at least none of any weight, for the
proposition that the practice followed by an organ of the United Nations may
be equated with the subsequent conduct of the parties to a treaty.
The jurisprudence of this Court and of the Permanent Court accordingly
reveals, I believe, no support for the various contentions advanced by the
States to which reference has been made and in particular lends none to the
proposition that a pratice pursued by a majority of Member States in an
organ of the United Nations has probative value in the present case.
***
Apart from a practice which is of a peaceful, uniform and undisputed
character accepted in fact by all current Members, a consideration of which
is not germane to the present examination, I accordingly entertain
considerable doubt whether practice of an organ of the United Nations has
any probative value either as providing evidence of the intentions of the
original Member States or otherwise a criterion of interpretation. As
presently advised I think it has none.
If however it has probative value, what is the measure of its value before
this Court?
An organ of the United Nations, whether it be the General Assembly, the
Security Council, the Economic and Social Council, the Secretariat or its
subsidiary organs, has in practice to interpret its authority in order that
it may effectively function. So, throughout the world, have countless
governmental and administrative [p 196] organs and officials to interpret
theirs. The General Assembly may thus in practice, by majority vote,
interpret Charter provisions as giving it authority to pursue a certain
course of action. It may continue to give the same interpretation to these
Charter provisions in similar or different situations as they arise. In so
doing action taken by it may be extended to cover circumstances and
situations which had never been contemplated by those who framed the
Charter. But this would not, for reasons which have already been given,
necessarily involve any departure from the terms of the Charter.
On the other hand, the General Assembly may in practice construe its
authority beyond that conferred upon it, either expressly or impliedly, by
the Charter. It may, for example, interpret its powers to permit it to enter
a field prohibited to it under the Charter or in disregard of the procedure
prescribed in the Charter. Action taken by the General Assembly (or other
organs) may accordingly on occasions be beyond power.
The Charter establishes an Organization. The Organization must function
through its constituted organs. The functions and authorities of those
organs are set out in the Charter. However the Charter is otherwise
described the essential fact is that it is a multilateral treaty. It cannot
be altered at the will of the majority of the Member States, no matter how
often that will is expressed or asserted against a protesting minority and
no matter how large be the majority of Member States which assert its will
in this manner or how small the minority.
It is no answer to say that the protesting minority has the choice of
remaining in or withdrawing from the Organization and that if it chooses to
remain or because it pays its contributions according to apportionment under
Article 17 (2) the Members in the minority "acquiesce" in the practice or
must be deemed to have done so. They are bound to pay these contributions
and the minority has a right to remain in the Organization and at the same
time to assert what it claims to be any infringement of its rights under the
Charter or any illegal use of power by any organ of the United Nations.
In practice, if the General Assembly (or any organ) exceeds its authority
there is little that the protesting minority may do except to protest and
reserve its rights whatever they may be. If, however, the authority
purported to be exercised against the objection of any Member State is
beyond power it remains so.
So, if the General Assembly were to "intervene in matters which are
essentially within the domestic jurisdiction of any State" within the
meaning of Article 2 (7) of the Charter, whatever be the meaning to be given
to these words, that intervention would be the [p 197] entering into a field
prohibited to it under the Charter and be beyond the authority of the
General Assembly. This would continue to be so, no matter how frequently and
consistently the General Assembly had construed its authority to permit it
to make intervention in matters essentially within the domestic jurisdiction
of any States. The majority has no power to extend, alter or disregard the
Charter.
Each organ of the United Nations, of course, has an inherent right to
interpret the Charter in relation to its authority and functions. But the
rule that they may do so is not in any case applicable without
qualification. Their interpretation of their respective authorities under
the Charter may conceivably conflict one with the other. They may agree.
They may, after following a certain interpretation for many years, change
it. In any case, their right to interpret the Charter gives them no power to
alter it.
The question of constitutionality of action taken by the General Assembly or
the Security Council will rarely call for consideration except within the
United Nations itself, where a majority rule prevails. In practice this may
enable action to be taken which is beyond power. When, however, the Court is
called upon to pronounce upon a question whether certain authority exercised
by an organ of the Organization is within the power of that organ, only
legal considerations may be invoked and de facto extension of the Charter
must by disregarded.
***
Once a request for an Advisory Opinion is made to this Court and it decides
to respond to that request, the question on which the Opinion has been
sought passes, as is claimed by the Republic of France in its written
statement in this case, on to the legal plane and takes on a new character,
in the determination of which legal considerations and legal considerations
only may be invoked.
In the present case, it is sufficient to say that I am unable to regard any
usage or practice followed by any organ of the United Nations which has been
determined by a majority therein against the will of a minority as having
any legal relevance or probative value.
(Signed) Percy C. Spender.
[p 198]
SEPARATE OPINION OF JUDGE SIR GERALD FITZMAURICE
I
I have not written this separate opinion because I disagree with the
operative conclusion of the Opinion of the Court. I consider that the
expenditures referred to in the Assembly's Request are without doubt
expenses of the Organization within the meaning of Article 17, paragraph 2,
of the Charter. I also agree with much of the reasoning on which the Court's
Opinion is based, although it goes more into matters of pure detail and
procedure than I would have thought necessary. But as I shall indicate, I
have reservations on certain points of principle having wider implications,
though they do not affect the final conclusion reached in the present case.
Moreover (and this constitutes my main reason for writing a separate
opinion), it would seem that the Opinion of the Court, while dealing
elaborately with certain matters, refrains designedly from discussing other,
more general, aspects of the subject, involving difficulties which have
troubled a number of those who have had to do with it. The Opinion, in
short, ignores various points which appear to me to be very relevant; for
although the "legal guidance" mentioned in the preambular part of the
Request is asked for in connection with the question of "financing the
United Nations operations in the Congo and in the Middle East", I consider
that even in these contexts alone, this guidance must fall short of full
utility if it fails to deal with certain more general matters, and also with
one or two others that the Court has not gone into.
For instance, the Court has taken the view that it is only required to
state whether certain specified expenditures are expenses of the
Organization, and is not called upon to declare what are the financial
obligations of Member States (hence the change in the title of the case). To
my mind the two questions are indissolubly linked, for except in so far as
there is an obligation to contribute to expenditures which duly rank as
"expenses", there is no point in determining whether these expenditures are
expenses or not; and as I shall show, it is necessary to deal with certain
types of case in which it could be contended that, although given
expenditures are expenses of the Organization, there may not necessarily or
always be an obligation for every Member State to contribute to them. [p
199]
II
A short answer to the question put in the Request could be given on the
following lines:
first, that the notion of expenses of the Organization cannot be confined
merely to its regular administrative expenses, since the latter are not
incurred as an end in themselves but as a means to an end, namely, to enable
the Organization to carry out the essential substantive functions for which
it exists; therefore, to regard the obligation of Member States as extending
only to routine administrative expenses would be as stultifying as it would
be disingenuous FN1;
---------------------------------------------------------------------------------------------------------------------FN1
For instance, it would be a curious position, to say the least of it, if
Member States were obliged to contribute to paying the salaries of the
Secretariat, but not to the expenses of carrying out the functions of the
Organization, for the purposes of which the Secretariat had been engaged.
---------------------------------------------------------------------------------------------------------------------
secondly, that the notion of expenses of the Organization must extend at
least to those incurred in the discharge of the essential functions of the
Organization for which it was brought into exist-ence; that peace-keeping
activities constitute such a function; and that the expenditures specified
in the Request for an advisory opinion relate to peace-keeping activities;
thirdly, that the Charter does not exclude, and indeed (subject to specified
conditions and limitations) makes express provision for the carrying out of
certain peace-keeping activities by the Assembly (Articles II, 14, 35,
etc.); and that the activities of the Assembly in respect of which the
expenditures at issue were incurred were of this kind, and did not exceed
the conditions and limitations in question.
Broadly speaking, though in greater detail and with more elaboration, these
are some of the main considerations on which the Opinion of the Court is in
fact founded and, framed as indicated above, I concur in them. The Court
however, in addition to these considerations, and more particularly in
connection with those coming under the third of them, has alluded to the
possibility that, even if, in carrying out the activities concerned, the
Assembly was not acting in conformity with the division of functions
established by the Charter, this would not cause the resulting expenditures
to cease being expenses of the Organization, provided that the related
activities came within the functions of the Organization as a whole— the
irregularity ranking merely as a matter appertaining to the internal economy
of the Organization. This is an idea which I think must not be pressed too
far (nor does the Court rely on it except incidentally). It is certainly
correct in one sense, namely, that internal irregularities would not affect
liabilities definitely incurred by or on behalf of the Organization, in
relation to third parties outside [p 200]
the Organization or its membership FN2. But what is really in question here
is the relationship of the Member States inter se, and vis-á-vis the
Organization as such, and there can be no doubt that, in principle at
least, expenditures incurred in excess of the powers of the expending body
are invalid expenditures. The question is, are they invalid if they merely
exceed the powers of the particular organ authorizing them, but not those of
the Organization as a whole? It is true that there are cases, both in the
domestic and in the international legal spheres, where all that matters
(except on the purely internal plane) is that a certain act has in fact been
performed, or not performed, as the case may be, and where the reasons for,
or channels through which the performance or non-performance has taken place
are immaterial. But in the present case, the question of the financial
obligations of Member States in relation to the Organization is a question
moving on the internal plane; and if an instrument such as the Charter of
the United Nations attributes given functions in an exclusive manner to one
of its organs, constituted in a certain way—other and different functions
being attributed to other and differently constituted organs—this can only
be because, in respect of the performance of the functions concerned,
importance was attached to the precise constitution of the organ concerned
FN3.
---------------------------------------------------------------------------------------------------------------------FN2
I will postulate for present purposes that the third party is prima facie,
entitled in the particular circumstances, to assume that the liabilities
have been validly incurred.
FN3 I will postulate for present purposes that the third party is prima
facie, entitled in the particular circumstances, to assume that the
liabilities have been validly incurred.
---------------------------------------------------------------------------------------------------------------------
It is not however necessary to express any final view on this matter, for
the simple reason that, as the Opinion of the Court brings out, the Charter
does not, in fact, in the matter of peacekeeping activities, establish any
rigid general division of function between the role of the Security Council
and that of the Assembly. Enforcement or coercitive action stricto sensu is
of course exclusively for the Security Council, but I agree with the Court
that the action of the Assembly in the Middle East and in the Congo has not
been of this character. Furthermore, and as indicated by the Court, I
consider that this action of the Assembly has fallen within the scope of its
functions under the Charter, and has not exceeded the limitations thereby
imposed on the scope and exercise of those functions.
Beyond a somewhat general statement of this character, I would not wish to
go for present purposes. While I agree with the general trend of the Court's
reasoning on what I will call the "military" provisions of the Charter, I
would have to reserve my position on a number of points of formulation if I
thought it necessary to go into these provisions in detail. [p 201]
III
Much of the Opinion of the Court is concerned with and based on a
consideration of what has been the actual practice of the United Nations in
financial matters, both generally and in relation to the particular
expenditures here involved. I would have preferred to see less reliance on
practice and more on ordinary reasoning. The argument drawn from practice,
if taken too far, can be question-begging.
However, no one would deny that practice must be a very relevant factor.
According to what has become known as the "principle of subsequent
practice", the interpretation in fact given to an international instrument
by the parties to it, as a matter of settled practice, is good presumptive
(and may in certain cases be virtually conclusive) evidence of what the
correct legal interpretation is—a principle applied by the Court on several
occasions FN4. But where this is the case, it is so because it is possible
and reasonable in the circumstances to infer from the behaviour of the
parties that they have regarded the interpretation they have given to the
instrument in question as the legally correct one, and have tacitly
recognized that, in consequence, certain behaviour was legally incumbent
upon them. In the present context, it is necessary to take into account the
fact that any Member State can at all times, and in any event, contribute
voluntarily to the expenses of the Organization, whether or not it
recognizes a legal obligation to do so; and furthermore, that a number of
the expenditures of the Organization are in fact financed partly and, in
certain important cases, even wholly or mainly by voluntary contributions
FN5. In these circumstances, it is hardly possible to infer from the mere
fact that Member States pay, that they necessarily admit in all cases a
positive legal obligation to do so; and where, as has not infrequently
occurred, they have only paid under or after protest, the easier inference
is that this was because, for whatever reason (by no means necessarily
consciousness of legal obligation) they were unwilling in the last resort to
withhold a contribution.
---------------------------------------------------------------------------------------------------------------------FN4
See the South-West Africa case (1950), also the (Second) Admissions, Corfu,
Iranian Oil Company and U.S. Nationals in Morocco cases.
FN5 As to these, see below at the end of the first paragraph of Section
VIII.
---------------------------------------------------------------------------------------------------------------------
Nevertheless, while the existence of these considerations renders it
impossible to regard the practice of the United Nations as conclusive in
the matter—(it is indeed the validity of some part of that practice which is
put in issue by the present Request) —it cannot be less than very material;
and even if a majority vote cannot in the formal sense bind the minority, it
can, if consistently exercised in a [p 202] particular way, suffice to
establish a settled practice which a tribunal can usefully and properly
take account of.
IV
Subject to the foregoing reservations (which however go to reasoning only) I
agree that the particular expenditures mentioned in the Request rank as
expenses of the Organization; but in arriving at that conclusion the Court
has failed to indicate in terms (though it may to some extent have implied)
what are the general limitations of principle within which any given
expenditure can rank as an expense of the Organization; and this is
something which I think an advisory opinion on the financial obligations of
Member States ought to do, even though it is only their obligations
respecting certain particular expenditures that are actually in question.
In my opinion, two—partly overlapping but technically distinct— conditions
must be fulfilled before any given expenditure can rank as an expense of the
Organization. First, the expenditure must belong to the genus "expense"—that
is to say it must come within the class or category of expenditure normally
(and which can in the particular circumstances reasonably be) regarded as
having the basic nature of an "expense" properly so called. A sum of money
does not become an expense merely by being expended, or by its expenditure
being authorized. Secondly, even if the expenditure in question belongs in
principle to the genus "expense", it must have been validly incurred, for a
purpose which was itself valid and legitimate, in order to rank as an
expense within the meaning of Article 17, paragraph 2, involving for Member
States an obligation to contribute to it. There will remain a third
question, namely, does it follow that because a given expenditure is an
"expense", every Member State is invariably, and irrespective of
circumstances, bound to contribute to it according to that Member's
apportioned share? I shall indicate in due course why, in my opinion, the
answer to this last question is not self-evident.
It will be convenient to deal first with the second of the above-mentioned
questions—that of the validity of any given expenditures. This involves
issues such as the powers of the authorizing organ, whether the object of
the expenditure falls within the scope of the purposes of the Organization,
and so forth, which must depend on the particular circumstances of each
case, and to which no general solution is possible. In the present case, an
affirmative answer on the question of the validity of the expenditures
concerned can and must be given, as indicated by the Court. But the
important practical point involved is how the validity or invalidity of any
given expenditures can be determined if controversy arises, seeing that, as
the Court points out, the Assembly is under no obligation to [p 203] consult
the Court, and, even if consulted, the Court can only render an opinion
having a purely advisory character; and moreover, that there exists no other
jurisdiction to which compulsory reference can be made and which can also
render a binding decision.
The solution propounded by the Court is a twofold one. One aspect is
indicated in the statement made in the Opinion (italics added) that "As
anticipated in 1945 ... each organ [sc. of the United Nations] must, in the
first -place at least, determine its own jurisdiction"—i.e. the scope of its
own powers and the validity of their exercise. The phrase which has been
italicized in the above citation makes the view which the citation puts
forward acceptable up to a certain point. It is no doubt true that any
objection to a given exercise of powers, or to action based on the presumed
existence of certain powers, must be advanced in the first instance in the
organ concerned, and will be subject to a ruling by it, in the form of a
motion or resolution adopted by a majority vote.
The real question however, in my view (and the Court does not deal with it),
is whether such a ruling would have to be regarded as final. In the course
of the oral proceedings, the Court was in effect invited to take the view
that this would be the case. It was suggested, for example, that the mere
fact that certain expenditures had been actually apportioned by the
Assembly, was conclusive as to their validity. Apportionment would certainly
be conclusive as to the majority view of the Assembly, but this merely begs
the question. It amounts to saying that even if, on an objective and
impartial assessment, given expenditures had in fact been invalidly and
improperly incurred or authorized, they would nevertheless stand
automatically validated by the act of the Assembly in either apportioning
them among Member States or, in the event of a challenge, subsequently
resolving that the apportionment was good.
This is a view which I am unable to accept. It is too extreme. Moreover, I
do not read the Opinion of the Court as going so far. The issues involved
clearly transcend the merely financial problem, and even on the financial
side they go deeper; for if the Assembly had the power automatically to
validate any expenditure, as some Governments appear to have claimed in
their written or oral statements, this would mean that, merely by deciding
to spend money, the Assembly could, in practice, do almost anything, even
something wholly outside its functions, or maybe those of the Organization
as a whole. Member States would be bound to contribute, and accordingly a
degree of power, if not unlimited, certainly much greater than was ever
contemplated in the framing of the Charter, would be placed in the hands of
the Assembly. In this way, there could well come about an actual realization
of the fears expressed in one of the written statements presented to the
Court, possibilities which, otherwise, are perhaps not very serious, so [p
204] long as Member States retain at least a last resort right not to pay
FN6.
---------------------------------------------------------------------------------------------------------------------FN6
It is often said that there is a safeguard in the fact that, under Article
18 of the Charter, financial resolutions require a two-thirds majority
(though even so, a possible minority of about 35-40 States would be a
serious matter). But what Article 18 actually mentions is not "financial
resolutions", but "budgetary questions". Does this mean simply the ordinary
budget and the expenses included in it? If the expression did not include
other expenses, then the Assembly could in several classes of cases, by a
bare majority vote, impose financial liabilities on a minority of over 50
States—which in a few years may be one of over 60 States.
---------------------------------------------------------------------------------------------------------------------
The problem is to determine what that right consists of and, more
particularly, in what conditions it can be exercised. As indicated above,
it can only be a right of last resort; for an unlimited right on the part of
Member States to withhold contributions at will, on the basis of a mere
claim that in their view the expenditures concerned had been improperly
incurred, not only could speedily cause serious disruption, but would also
give those Member States which, on the basis of the normal scales of
apportionment, are major contributors, a degree of control and veto over the
affairs of the United Nations which, equally, can never have been intended
in the framing of the Charter to be exercised by these means, or Article 17,
paragraph 2, would not be there.
This brings me to the second element in the solution propounded by the
Court, and on this aspect of the matter I can concur. The solution is not
technically a final one, for as things are at present, means continue to be
lacking whereby, in the case of controversy, a decision binding both on the
Organization and on Member States can be obtained. In practice the
proposition involved will help towards producing a de facto solution. To
state it in my own way— when, on the basis of an item which has been
regularly placed on the agenda, and has gone through the normal procedural
stages, the Assembly, after due discussion, adopts by the necessary
two-thirds majority, a resolution authorizing or apportioning certain
expenditures incurred, or to be incurred, in the apparent furtherance of
the purposes of the Organization, there must arise at the least a strong
prima facie presumption that these expenditures are valid and proper ones.
Unless that is so, a potentially unworkable situation exists; but clearly it
must be so, and in consequence (subject to the points discussed in Section
VIII below), an apportionment by the Assembly has, initially at least, the
effect that Member States become obliged to pay their apportioned shares.
This is because, if such a presumption arises, it must in principle continue
to exist unless and until it is rebutted and the contrary position is
established, by whatever means it may be practicable to have recourse to—any
consequential financial adjustments being effected later. Only if [p 205]
the invalidity of the expenditure was apparent on the face of the matter, or
too manifest to be open to reasonable doubt, would such a prima facie
presumption not arise.
V
It is now necessary to consider the first of the questions mentioned in the
second paragraph of the preceding Section; for the simple fact that
expenditures are valid, or anyhow not invalid, does not necessarily, or of
itself, make them "expenses" of the Organization. It depends on what is
properly to be understood by the notion of an expense. To give a quick
illustration, it could be argued (I shall discuss the merits of the argument
later) that while expenditures incurred in the discharge of functions which
the Organization has a duty under the Charter to perform (for instance the
functions of a peace-keeping character involved in the present case) are
un-questionably in the nature of expenses, expenditures incurred in the
performance of activities of a merely permissive kind, which the
Organization has a faculty, but no positive obligation, to carry out, do not
have that character, although they might be perfectly proper expenditures.
In cases coming under the latter head, therefore, it might be contended
that if the Organization decides upon such an activity, it must look to
voluntary contributions from Member States, or other sources of income
available to it, in order to finance the activities FN7, and cannot claim
contributions as a matter of obligation under Article 17, paragraph 2, of
the Charter.
---------------------------------------------------------------------------------------------------------------------FN7
This is what in fact occurs in many cases—see as indicated in footnote 5
above.
---------------------------------------------------------------------------------------------------------------------
Another illustration would be if, at the invitation of one or more Member
States (as can happen), the Organization engaged in some activity, or
assumed some function, quite outside the normal scope and framework of the
Charter. Such action would not be illegal if it was carried out with the
consent of all the States affected by it; nor would the resultant
expenditures be invalid. But they would, ex hypothesi, not be expenditures
contemplated or provided for by the Charter. Despite their "non-invalidity"
therefore, they could not rank as "expenses of the Organization" within the
meaning of Article 17, paragraph 2, to which all Member States would be
obliged to contribute, irrespective of how their votes had been cast in
relation to the resolutions authorizing the expenditures in question. Member
States cannot, in my opinion, be bound to contribute to expenditures
incurred outside the scope and framework of the Charter (even if these are
not illegal in se), except by their specific consent given ad hoc in
relation to the particular case. Article 17, paragraph 2, does not, as such,
extend to such a case. "Non-[p 206] invalidity" does not therefore, in my
view, suffice of itself to give rise to an obligation to contribute to given
expenditure as an expense of the Organization, irrespective of various other
factors which I shall discuss in due course. The validity of the expenditure
and the obligation to contribute to it are two distinct questions. Validity
is a condition of the obligation: it is not necessarily a sufficient
condition.
Equally, if the matter is looked at in a more general way, it is not the
case that the genus "expense" can be simply equated with "expenditure" or
"disbursement", i.e. anything that is in fact paid out. In the technical
sense, and in the normal acceptation of the term, "expenses" are
expenditures of a kind which, under private law, would be "recoverable". For
instance, in contracts of employment, it is very usual to find a clause
saying that the employee will receive such and such a salary, "plus
expenses"; but it is well understood that this does not mean any and all
disbursements or expenditures the employee may choose to make in the course
of carrying out his functions, but only such as are reasonable and
necessary, and have been incurred in the normal course of business. This is
really inherent in the whole idea of an expense, and must be read into
Article 17, paragraph 2, despite the absence of any express qualification;
for after all, the Organization, by apportioning the expenditures concerned,
is, in effect, seeking to recover them from the Member States.
Taking account of these considerations, an attempt can now be made to
ascribe some content to the notion of "expenses of the Organization". The
Court has declined to give any definition of this term. I agree that a
definition as such is not called for, and would in any case be difficult.
But short of a definition, I think it useful to indicate the main types of
expenditures which, assuming them to be valid and legitimate, would fall
within the normal conception of what constitutes an expense, and would
therefore be "expenses of the Organization". Such expenditures would, it
seems to me, include the following (I will simply indicate them without
giving any reasons, as these are self-evident):
A. All those expenditures, or categories of expenditures, which have
normally formed part of the regular budget of the Organization, so that a
settled practice (pratique constante) of treating them as expenses of the
Organization has become established, and is tacitly acquiesced in by all
Member States.
B. In so far as not already covered by head A:
I. administrative expenditures;
II. expenditures arising in the course, or out of the performance by the
Organization of its functions under the Charter; [p 207]
II. any payments which the Organization is legally responsible for making
in relation to third parties; or which it is otherwise, as an entity, under
a legal obligation to make; or is bound to make in order to meet its
extraneous legal obligations.
In head B II however, the words "... arising ... out of the performance by
the Organization of its functions under the Charter" conceal a difficulty
which will be discussed in the last Section of this Opinion; and in any
event these words do not include the case noticed above, where the
Organization may, by invitation, engage in activities, or assume functions,
outside the scope and framework of the Charter, even if, by reason of such
invitation, no illegality arises. Action outside the Charter can well not
involve any breach of general international law; and even if it otherwise
would, may be validated in various ways. It does not thereby become Charter
action, or the expense of it a Charter expense attributable to Member
States.
VI
I come now to the third and last of the questions mentioned in the second
paragraph of Section IV above, which is the one that has caused me the most
difficulty in this case. It is not dealt with in the Opinion of the Court,
because the Court has proceeded on the basis that once it is established
that certain expenditures constitute "expenses of the Organization", it
follows necessarily and automatically that every Member State is obliged to
pay its apportioned share of these expenses in all circumstances. It can
however, or it may be argued, that there are circumstances in which this
would not be the case; and it seems to me essential to state, and to deal
with this argument, if only to indicate how far and in what respects it is
incorrect. Just as, in my view (see Section V), the notions of "validity"
and "obligation to contribute" are not neces-sarily coincident, so also is
it to me far from automatically self-evident that the notions of "expense"
and "obligation to contribute" are ipso facto identical, though they are
clearly closely related. I must therefore examine the matter.
Before coming to grips with this problem however, it is necessary to notice
certain peculiarities about Article 17, paragraph 2, and to consider what is
the exact role played by that provision in the financial set-up of the
United Nations.
It is always a useful exercise when the interpretation of a given provision
in the context of a whole instrument is in question, to consider what
difference it would make if that provision did not figure in the instrument
at all. It is only necessary to ask what the [p 208] position would have
been if Article 17, paragraph 2, had not in fact been inserted in the
Charter, in order to see at once that the obligation of Member States
collectively to finance the Organization, by one means or another—the
obligation of principle that is—cannot be dependent,, on the existence of
Article 17, paragraph 2. It must in any case arise as a matter of inherent
necessity. An Organization such as the United Nations cannot function
without funds, and there is no other quarter from which, as a matter of
obligation (and nothing short of obligation suffices) funds could come,
except from the Member States themselves. Without finance, the Organization
could not perform its duties. Therefore, even in the absence of Article 17,
paragraph 2, a general obligation for Member States collectively to-finance
the Organization would have to be read into the Charter, on the basis of the
same principle as the Court applied in the Injuries to United Nations
Servants case, namely "by necessary implication as being essential to the
performance of its [i.e. the Organization's] duties"—(I.C.J. Reports 1949,
at p. 182). Joining the Organization, in short, means accepting the burden
and the obligation of contributing to financing it.
Clearly, the independent character of the financial obligation of Member
States—the fact that it has a basis extraneous to Article 17, paragraph
2—considerably strengthens the view, first, that the obligation does exist,
and secondly that it exists at least to the extent necessary to make the
Organization workable. So much is scarcely open to doubt. What might however
(and in my opinion, for reasons to be indicated, would) be open to
controversy, is the exact nature and extent of that obligation, and how it
is to be carried out. In this connection, the fact that Article 17,
paragraph 2, does duly figure in the Charter is of importance; nevertheless
the light in, which this provision has to be looked at may be affected by
the existence of the independent obligation of principle, and this aspect of
the matter must now be considered.
Were it not for the records of the San Francisco Conference for the drafting
of the Charter (to which I shall refer later) the correct interpretation of
Article 17, paragraph 2, would be that it added nothing to the' already
existing inherent obligation, and went solely to the mechanics of the
performance of that obligation. It is worded so as to assume or imply the
basic obligation rather than to create or express one, as it would do if for
instance it read "The expenses of the Organization shall be borne by the
Members, and shall be borne by them as apportioned by the General Assembly".
The italicized phrase is not however there, with the result that Article 17,
paragraph 2,'is elliptical, and declaratory rather than constitutive of the
basic obligation. Having regard to the independent foundation and inherent
nature of the financial obligation of Member States, it would seem that the
only real additional substantive effect of this provision (taken by itself
and without reference to the travaux [p 209] préparatoires, as is the normal
initial approach to any interpretative task) is to indicate the organ,
namely the General Assembly, which is to decide on the apportionment of the
expenses as between the Member States, and also to make it clear that these
States must accept the apportionment so determined. This view of the effect
of Article 17, paragraph 2, if that provision is considered per se, is
further supported by the points mentioned in the footnote hereto FN8.
Consequently it seems to me incorrect to say, as has sometimes been
suggested, that the exercise of the power of apportionment by the Assembly
creates the obligation. This is surely putting the cart before the horse.
Apportionment is merely a condition precedent of the obligation having to be
carried out. It quantifies the content of it; but the obligation itself is
an antecedent one, and without it, the apportionment would lack legal
effect, or would amount merely to an invitation to contribute the indicated
share on a voluntary basis.
---------------------------------------------------------------------------------------------------------------------FN8
Whereas no express provision was necessary in order to create a general
liability of principle for Member States to bear the costs of the
Organization, which would have existed in any case as a matter of inherent
necessity, an express provision did have to be introduced in order to
provide for the method of apportionment; and also to oblige Members to pay
the share allocated to them, and not assert a right to pay a smaller share.
Without an express provision on these points there would have been endless
debate, and no organ of the United Nations would have been invested with any
clear right of decision. In exactly the same way, the first paragraph of
Article 17 is also essential, in order to make it clear that it is the
Assembly, and not some other organ, such as the Security Council, which
adopts the budget of the Organization. The lack of corresponding provisions
in the Covenant of the former League of Nations led to great difficulties in
the early years of the League, and eventually necessitated an amendment of
the Covenant. A further indication that Article 17 is directly concerned
with the mechanics of the obligation to con-tribute, rather than with the
obligation itself, is afforded by the fact that it figures in Chapter IV of
the Charter, which deals with the functions of the General Assembly. If the
main purpose of the Article was to make clear the responsibility of Member
States for bearing the costs of the Organization, it should have figured in
some more general chapter, and not among the functions of the Assembly.
Without reference to the San Francisco records, the deduction would be that
the subject of the Article was the financial powers of the Assembly rather
than (except indirectly) the obligations of Member States.
---------------------------------------------------------------------------------------------------------------------
It follows, in my opinion, that there is a sufficient element of ambiguity
about the exact intention and effect of Article 17, paragraph 2, to make
its interpretation on the basis of the rule of the "natural and ordinary
meaning" alone, unsatisfactory. In these circumstances it is permissible to
have recourse to the preparatory work of the San Francisco Conference.
Reference to this source indicates that the words "shall be borne by the
Members as apportioned by the General Assembly", rather than some phrase
such as "shall be allocated to the Members in such shares as the Assembly
may determine", were deliberately employed with the object of ensuring that
what was called "a clear statement of the obligations of Members to meet the
expenses of the Organization" should be found in the Charter itself —
(Document 194 in the Dossier supplied [p 210] to the Court by the
Secretary-General of the United Nations, pp. 9-13, passim) FN9. If the
language used was not in fact very apt for the purpose of embodying such a
"clear statement", the existence of the intention at any rate is clear, and
for reasons which I shall presently give, it is important that there should
be no doubt about that intention.
---------------------------------------------------------------------------------------------------------------------FN9
It is also clear from the records that the inappropriateness of putting the
basic financial obligation of Member States amongst the functions of the
Assembly was realized. It was apparently left there because no better place
could be found for it.
---------------------------------------------------------------------------------------------------------------------
VII
I propose now to consider the difficulty I mentioned earlier—the question
whether, if given expenditures are duly expenses of the Organization, an
obligation for every Member State to contribute to them as apportioned
arises in all circumstances. The core of the difficulty is how to reconcile
the obligatory character of the liability to meet the expenses of the
Organization with the non-obligatory character of many, indeed most, of the
resolutions under which these expenses are incurred. To me, it has not
seemed self-evident that Article 17, paragraph 2, on its actual wording,
necessarily or automatically disposes of this difficulty; and unless it can
be dis-posed of satisfactorily, the affirmative reply given to the question
addressed to the Court must be less convincing than it ought to be.
There is clearly no problem in the case of decisions of the Security Council
which, under Article 25 of the Charter, are binding on Member States, even
on those Members of the Council which voted against them, and equally on
those Members of the Assembly which, not being Members of the Council, ex
hypothesi did not vote at all. Therefore, even in the absence of Article 17,
paragraph 2, all these Member States would be obliged to meet the expenses
of carrying such decisions out. But many Security Council resolutions only
have a recommendatory intention and effect, and this is in principle also
the case with most Assembly resolutions. If however a Member State has voted
in favour of such a resolution, or, by abstaining, has not manifested
opposition to it, it is reasonable to regard either of these attitudes, not
indeed as involving any formal obligation for that Member State itself to
carry out the resolution, operationally, but as indicating approval of, or
at any rate tacit acquiescence in, its being carried out by those Member
States which are ready to do so; and also (and quite apart from Article 17,
paragraph 2) as im-plying willingness to contribute to the expenses of
carrying it out— although as regards the effect of abstentions, it would be
better to put the matter on the basis that a Member State which does not
vote against a given resolution, can scarcely object if it is called upon to
pay its share of the resultant expenses. [p 211]
Similar considerations can hardly apply to the case of a vote which does go
to the length of being cast against the resolution concerned—a resolution
which is in any case purely recommendatory. Certainly it would seem at
first sight an odd position that a Member State which is not itself bound to
carry out such a resolution, and which has manifested disapproval of its
being carried out at all by anyone, should nevertheless be legally obliged
to contribute to the expenses of executing it. Here therefore is a case in
which, in order to justify the conclusion that a Member State in this
position is nevertheless bound to contribute its apportioned share, reliance
on the inherent obligation of Member States to meet the costs of the
Organization might not be sufficient; for that obligation is an obligation
of principle only. It would not necessarily extend to or cover every case. A
Member State which had voted against a resolution having only a
recommendatory effect could, in the absence of express language figuring, or
to be deemed to figure, in the Charter itself, very plausibly argue that the
obligation did not exist for it in the particular case, especially with
reference to certain types of activities—(see Section VIII below). It is
therefore important that the records of the San Francisco Conference—even if
the language used for the purpose was not particularly felicitous—do
indicate that the intention to impose a definite financial obligation on
Member States was there. Looking at the matter as a whole, I think that
(with the possible exception of the class of case considered in Section VIII
below) this intention must be deemed to have extended to covering the
payment by Member States of their apportioned shares, irrespective of how
their votes were cast on any given occasion, at any rate as regards all the
essential activities of the Organization, and even if they have no formal
legal obligation to join in carrying out the activities to which the given
expenditures relate. (In the case of inessential activities, the position is
more complicated, and I consider this in the final section of this Opinion.)
In reaching this conclusion, it is material to take account of the following
factor: those who framed the Charter deliberately broke away from the
fundamental voting rule of the former League of Nations (unanimity—see
Article 5, paragraph 1, of the League Covenant), and they adopted for the
United Nations a majority voting rule. In an Organization which has never
numbered much less than 50-60 Member States, and now numbers over 100, no
other rule than a majority one would be practicable. But a majority voting
rule is meaningless unless, although the States of the minority are not
formally bound as regards their own action, they at least cannot prevent or
impede the action decided on from being carried out [p 212] aliunde. This
they obviously could do if they had a species of veto, the exercise of
which, through the refusal to contribute financially, would enable them to
prevent or seriously impede the action concerned.
The same conclusion can be reached in another way, for if there is, on the
one hand, a general position under the Charter according to which certain
resolutions have no formally obligatory character— doubly not so for those
who vote against them—there is also, on the other hand, a special provision,
Article 17, paragraph 2, obliging Member States to contribute to the cost
of carrying these resolutions out, in so far as these costs duly rank as
expenses of the Organization. To this situation the rule generalia
specialibus non derogant must apply, so that in spite of the general element
of non-obligation under these resolutions, the special obligation to
contribute to the expenses incurred in carrying them out prevails, and
applies even to Member States voting against. There is in short no
substantive conflict.
This position was aptly compared, by one of the representatives of
Governments at the oral hearing, to that of a member of the public who
cannot be compelled physically to join in constructing a public edifice but
can, through the medium of ordinary taxation, be made to contribute to the
cost of having it constructed by others. Another comparison, perhaps even
closer, would be that of membership of a club. If the Committee or
governing body of a club decides to acquire additional premises, or to
extend the club's activities, or otherwise to increase expenditure, and this
necessitates raising the annual subscription, or in some other manner
involves financial liabilities for members, and this decision is ratified by
a general meeting of the members, the latter, irrespective of how they
voted, must pay accordingly, or resign their membership.
VIII
I have mentioned the existence of a class of case to which, possibly, the
foregoing considerations would not apply, and regarding which there may be
room for some real doubt whether any financial obligation can arise, at
least for Member States voting against the resolution concerned in any given
case. In the normal case, a resolution provides for certain action to be
taken by the Organization, either through such of the Member States as are
willing to participate, or through the medium of the Secretary-General or of
some other agent or agency. In these cases, despite the obligation to
contribute to the resultant expenses, the resolution retains its
fundamentally non-obligatory character; for if the Member States are obliged
to contribute financially, they are not [p 213] obliged to participate in
the operational carrying out of the substantive activities provided for in
the resolution. Where however the "action" to be taken under the resolution
consists solely of provision for making a payment or financial contribution
(e.g. for some purpose of aid or relief), so that the making of this payment
or contribution is not merely a means to an end—viz. enabling the resolution
to be carried out—but the end itself, and the sole object of the resolution,
it is evident that if the payment or contribution concerned is to be treated
as one to which even Member States which voted against the resolution must
contribute by reason of Article 17, paragraph 2, the resolution acquires in
practice a wholly obligatory character—since it does one thing only, and
Member States are bound, or would be bound, to do or contribute to doing
that one thing. In this connexion, it is significant that the actual
practice of the Assembly (and the Court has drawn considerable inspiration
from this source), has been to finance expenditures falling within this
class of case, mainly by calling for voluntary contributions from Member
States. Examples are the activities (or most of them) for which budgetary
provision is made under such heads as those of "Trust Funds" and "Special
Accounts"—for instance the U.N. Special Fund, UNKRA, UNSCO, EPTA, UNRWA,
UNICEF, the U.N. Fund for the Congo, and the U.N. Congo Famine Fund. No
doubt special considerations applied in some of these cases; still, the fact
remains that contributions were not claimed as a matter of actual
obligation.
The same point arises in another way, in relation to head B II in the list
of expenditures ranking as expenses of the Organization given at the end of
Section V above. What expenditures precisely should this head B II be
regarded as covering? There are broadly two main classes of functions which
the Organization performs under the Charter—those which it has a duty to
carry out, and those which are more or less permissive in character.
Peace-keeping, dispute-settling and, indeed, most of the political
activities of the Organization would come under the former head; many of
what might be called its social and economic activities might come under the
latter. Expenses incurred in relation to the first set of activities are
therefore true expenses, which the Organization has no choice but to incur
in order to carry out a duty, and an essential function which it is bound to
perform. Therefore the principle enunciated by the Court in the Injuries to
United Nations Servants case, and mentioned earlier, applies: the
Organization "must be deemed to have those powers which, though not
expressly provided in the Charter, are conferred upon it by necessary
implication as being essential to the performance of its duties" (citation
on p. 208 above). Even without Article 17, paragraph 2, the Organization
could require Member States to contribute to these expenses. [p 214]
It is less clear that any similar power exists to require Member States to
meet the costs incurred in performing merely permissive activities carried
out under non-binding resolutions. There certainly would be no such power
without Article 17, paragraph 2—at least not as regards Member States which
voted against the resolution giving rise to the expenditure concerned; and
even with the assistance of Article 17, the position is not entirely clear.
There is-a definite distinction, inasmuch as where the activities involved
are such as the Organization has a duty to carry out, non-contribution by a
Member State would be fundamentally inconsistent with that State's
membership, as being calculated to prevent or gravely impede the performance
by the Organization of an essential function. Where the costs of
permissive, or non-essential activities are concerned, there is no
correspondingly clear-cut inconsistency, and there must remain a question
whether, in this type of case, Article 17, paragraph 2, is sufficient to
give rise to a financial obligation for the dissenting voter. If it is
sufficient, then it would follow that, in theory at least, the Assembly
could vote enormous expenditures, and thereby place a heavy financial
burden even on dissenting States, and as a matter of obligation even in the
case of nonessential activities. This would be reading a lot into such a
provision as Article 17, paragraph 2. In this connexion, it must be borne in
mind that, if a two-thirds majority is required for the adoption of
financial resolutions, the present scales of apportionment cause a major
part of the resulting contributions to fall on a comparatively small
minority of the Member States. As has already been mentioned, the existence
here of a genuine difficulty seems to have been recognized in practice
within the Organization, inasmuch as the cost of a large part of these
permissive activities is met from voluntary contributions FN10.
---------------------------------------------------------------------------------------------------------------------FN10
I have already given it as my view (see Section V above) that no financial
obligation arises where the Organization acts outside the ambit of the
Charter, even if (because it has been invited to do so, and confines its
action to consenting States) no illegality is involved. But in these cases,
the lack of obligation derives not so much from the casting of a contrary
vote, as from the fact that, in my opinion, the expenditures involved would
not properly speaking be "expenses of the Organization" within the meaning
of Article 17, paragraph 2, at all.
---------------------------------------------------------------------------------------------------------------------
To set against these considerations, there is the fact that it would not be
easy to draw a hard and fast line between necessary, essential and
obligatory functions of the Organization, on the one hand, and merely
optional, non-essential and permissive ones on the other. Changing concepts
also are involved. Today, the humanitarian and aid-giving functions of the
Organization are, if less imperative, [p 215] hardly less important than its
political functions, and may well contribute materially, or even be
essential, to the success of the latter.
For the purposes of the present Request it is not necessary to express any
final view about these points, but I have thought it useful to draw
attention to them. There is moreover at least one case of this kind as to
which I feel no doubt about the obligation to contribute, irrespective of
how a Member State's vote has been cast. It has been suggested by some of
those who deny all validity to peace-keeping activities organized by the
Assembly, that (on the analogy, as I suppose, of the well-known Prize Law
doctrine of "infection") even civil expenditures in the nature of technical
assistance, famine relief, etc., given to any country contemporaneously and
in connexion with such peace-keeping activities (as is the case under some
of the resolutions now involved) become, by a process of association,
"tainted", as it were, with the same invalidity as is alleged to exist for
the peace-keeping activities themselves. I take a view which is the exact
antithesis of this, and applies the doctrine of "infection" in reverse. Even
if it should be the case (and on this I do not express any final view) that
there is no positive obligation to contribute to the expenses of carrying
out social and economic activities of a permissive character (except for
Member States supporting or not opposing the activity concerned), I consider
that where such an activity is closely connected with, arises out of, and,
in short, is basically part of a peace-keeping endeavour, and necessary for,
or directly contributory to the success of that endeavour, the activity in
question takes on the nature of an essential activity, the expenses of which
are expenses of the Organization to which all Member States are bound to
contribute, irrespective of their votes.
Consequently, my concurrence in the Opinion of the Court extends no less to
the civil than to the military expenditures incurred under the Resolutions
specified in the Request.
(Signed) G. G. Fitzmaurice.
[p 216]
SEPARATE OPINION OF JUDGE MORELLI
[Translation]
I concur in the Court's affirmative reply to the question submitted to it by
the United Nations General Assembly. I also agree with the way in which the
Court has disposed of most of the particular points which it thought
necessary to consider concerning the conformity of the resolutions relating
to the Emergency Force and to the operations in the Congo with the Charter.
I think however that the Court did not need to go into these particular
points, because an affirmative answer to the question as formulated by the
General Assembly does not in my view depend on the conformity of those
resolutions with the Charter.
I
I. I should like first of all to indicate what in my view are the criteria
by which the task that the Court has to perform is to be determined.
The question referred to the Court has a clearly defined subject, namely
whether the expenditures authorized in certain General Assembly resolutions,
relating to the operations undertaken in pursuance of certain other
resolutions of the General Assembly and the Security Council, constitute
"expenses of the Organization" within the meaning of Article 17, paragraph
2, of the Charter of the United Nations.
That being the question submitted to the Court, the Court must remain within
the bounds of that question, and it is that question alone which the Court
must answer in the operative provisions of its Opinion. It is for the organ
empowered to request an opinion of the Court to frame in full freedom the
question to be submitted to the Court, and that organ is consequently free
to give the question the scope which it considers most suitable.
According to the amendment proposed by the French delegation in the General
Assembly, the scope of the question ought to have been broader, and the
question ought to have been worded as follows:
"Were the expenditures authorized, etc. ... decided on in conformity with
the provisions of the Charter and, if so, do they constitute 'expenses of
the Organization' within the meaning of Article 17, paragraph 2, of the
Charter of the United Nations?"
If such an amendment had been adopted the Court would have been bound, by
the actual terms of the request for advisory opinion, to consider in the
first place the question of the conformity of [p 217] certain resolutions
with the Charter, and the Courut wold have had to dispose of this question
in the operative provisions of its Opinion. The French amendment having been
rejected, it follows that the question of the conformity with the Charter of
the resolutions concerned must be regarded as not forming the subject of the
request for advisory opinion. This means that the Court is not bound by the
actual terms of the request for opinion to consider that question and that
it could not, in any case, dispose of it in the operative provisions of the
Opinion.
2. However, the question which is the subject of the request for opinion is
one thing; another are the various questions which the Court must
necessarily consider and dispose of in the reasons for the Opinion in order
to be able to arrive at an answer to the question submitted to it.
It is exclusively for the Court to decide, in the process of its reasoning,
what are the questions which have to be solved in order to answer the
question submitted to it. While, as is stated above, the organ requesting
the opinion is quite free as regards the formulation of the question to be
submitted to the Court, it cannot, once that question has been defined,
place any limitations on the Court as regards the logical processes to be
followed in answering it. That organ cannot therefore exclude the
possibility of the Court's dealing with a question which the Court might
consider it necessary to answer in order to perform the task entrusted to
it. Nor can the organ requesting the opinion oblige the Court to presuppose
any particular answer to a preliminary question. Any limitation of this kind
would be unacceptable because it would prevent the Court from performing its
task in a logically correct way.
However, in the present case there is nothing either in the text of the
request for opinion or in the debates which preceded the adoption of that
request by the General Assembly which shows an intention on the part of the
Assembly to limit in any way the Court's freedom to select the path to be
followed in answering the question submitted to it. No limitation of this
sort, which would be quite unacceptable, could be inferred from the
rejection of the French amendment. By rejecting that amendment the Assembly
did no more than quite legitimately define the question which is the
subject of its request to the Court.
Therefore, even according to the request for advisory opinion, the Court is
free to consider or not consider the question of the conformity of the
resolutions with the Charter (or the other question, which does not
necessarily coincide with the former, of the validity of the resolutions).
This freedom can however be understood only as subordinated both to the
rules of law and logic by which the Court is bound and also to the objective
which the [p 218] Court must pursue, which is the solution of the question
submitted to it. In the present case that question relates solely to the
legal characterization of certain expenditures. The Court would therefore be
obliged to consider either the question of the conformity of the resolutions
with the Charter, or the question of the validity of the resolutions, should
it recognize that it is necessary to dispose of one or other of these
questions in order to answer the question of the characterization of the
expenditures. Should the Court on the contrary not recognize any such
necessity, it should refrain from considering the questions referred to
above.
II
3. For the consideration of the question submitted to the Court it is
desirable to draw a very general distinction between three different
categories of resolutions which may be adopted by the organs of the United
Nations.
(a) First from the logical and chronological standpoint, there are (or may
be) resolutions in which some activity is decided on or recommended. Such
are the General Assembly and Security Council resolutions concerning the
Emergency Force and the operations in the Congo.
(b) Secondly, there are resolutions in which the General Asembly, when
approving the budget under Article 17, paragraph 1, authorizes
expenditures. Such resolutions may be related to resolutions of the first
category. This is so in the case of the Emergency Force and the operations
in the Congo. But General Assembly resolutions authorizing expenditures may
also be independent of any previous resolution. This happens in the case of
United Nations activities directly provided for by the Charter.
(c) Thirdly, there are the resolutions by which the General Assembly
apportions the expenses among the Members under Article 17, paragraph 2.
This distinction, which is purely schematic, does not exclude the
possibility that a resolution falling within one of these categories may be
the inferential result of another resolution falling in a different
category. In particular, a resolution authorizing a certain expenditure may
have to be considered as implied in the resolution by which the General
Assembly apportions the same expense under paragraph 2 of Article 17. In
this case, the first of the two resolutions must be regarded as a resolution
adopted by the Assembly on the basis of paragrpah 1 and not paragraph 2 of
Article 17. [p 219]
4. The question submitted to the Court is whether the expenditures
authorized in certain General Assembly resolutions constitute "expenses of
the Organization". Reference is made to paragraph 2 of Article 17 of the
Charter. This reference defines the subject of the question submitted to the
Court, and means that an affirmative reply to the question implies the
following consequences:
(1) that the expenses referred to must be borne by the Members;
(2) that the General Assembly is empowered to apportion those expenses among
the Members.
The General Assembly has in fact adopted resolutions in which the expenses
in question have been apportioned among the Members. The Court however has
not to pronounce either on the validity or on the effects of such
resolutions, because the question submitted to it relates to a point
logically prior to the apportionment; it is directed solely to the
characterization of the expenditures as expenses of the Organization within
the meaning of Article 17, paragraph 2.
Such being the problem submitted to the Court, it is not possible to
envisage its settlement by saying that it is for the Assembly to decide
whether an expenditure is or is not an expense of the Organization within
the meaning of Article 17, paragraph 2, and that in the present case the
Assembly has expressly or impliedly so characterized the expenditures
relating to the Emergency Force and the operations in the Congo. Indeed,
even if the view were taken that the General Assembly's characterization of
an expenditure as an expense of the Organization within the meaning of
paragraph 2 of Article 17 is in any case final and binding upon the Members,
and that the Members have consequently no possibility of disputing the
validity of such characterization by alleging its non-conformity with the
rules of the Charter, such a view would not prevent the Court from verifying
whether the General Assembly's express or implied characterization of the
expenses relating to the Emergency Force and the operations in the Congo is
correct or not. This is for the very simple reason that it is precisely such
verification which constitutes the subject of the request for advisory
opinion made by the Assembly itself to the Court.
5. I am of the view that the question of what expenditures constitute
"expenses of the Organization" within the meaning of Article 17, paragraph
2, can be answered only by taking that paragraph in relation with paragraph
1 of the same Article 17. The link between the two first paragraphs of
Article 17 shows in my view that the "expenses of the Organization" referred
to in paragraph 2 can be only expenditures which the General Assembly has
authorized when approving the budget under paragraph 1.
The term "budget" used in paragraph 1 is not accompanied by any restriction
(such as that in paragraph 3, which refers to the [p 220] "administrative
budgets" of the specialized agencies), and must be understood in the widest
sense. It means all the budgets of the Organization—not only the ordinary or
administrative budgets, but also the extraordinary budgets. The fact is that
paragraph I of Article 17 confers on the Assembly a general and exclusive
competence in budgetary matters.
It follows that the "expenses of the Organization" referred to in paragraph
2 are all the expenditures which the General Assembly has authorized in any
way whatever when approving the budget under paragraph 1. I have no need to
repeat that authorization of an expenditure may be the inferential result of
the resolution in which the General Assembly apportions that expense among
the Members.
6. It is however quite clear that according to paragraph 1 of Article 17 the
General Assembly may not act in an arbitrary manner when it approves the
budget. It can authorize only certain expenditures, that is to say,
expenditures which are concerned in some way with the Organization. It can
be seen from this that there is a concept of expenses of the Organization
which must be regarded as underlying paragraph I.
It must be observed, however, that the two concepts of expenses of the
Organization, that implicit in paragraph 1 and that which is used in terms
in paragraph 2, are different. The first indicates the expenses which may be
authorized by the Assembly, the second indicates the expenses which are to
be borne by the Members as apportioned by the Assembly. Not only do the two
concepts have different purposes, but they refer to subjects which are not
coincidental, in spite of the relationship between the first two paragraphs
of Article 17. The concept of "expenses of the Organization" which is used
in terms in paragraph 2 to indicate the expenses which are to be borne by
the Members as apportioned by the General Assembly relates not to the
expenses which the Assembly may authorize but rather to the expenses which
have in fact been authorized by the Assembly.
The question submitted to the Court is only whether certain expenditures do
or do not constitute "expenses of the Organization" within the meaning of
Article 17, paragraph 2. The question does not relate (or at any rate does
not directly relate) to the other concept of expenses of the Organization
implicitly referred to in paragraph 1 of Article 17, that is to say, the
expenses which may be authorized by the General Assembly.
I have said that the "expenses of the Organization" referred to in Article
17, paragraph 2, are the expenditures which the General Assembly has
authorized when approving the budget under para-graph 1 of that Article. But
this is far from disposing of the question referred to the Court. The term
approval of the budget (and [p 221] hence authorization of expenses) can be
used to indicate only valid approval. It follows that to characterize an
expenditure as an expense of the Organization within the meaning of Article
17, paragraph 2, necessarily presupposes the validity of the General
Assembly resolution in which that expenditure was authorized.
But the question may arise whether it is sufficient to stop short at the
problem of the validity of the authorization of the expenditure, or whether
it is necessary to go further back and examine also the validity of any acts
of the Organization which decided on or recommended the activity to which
the authorized expenditure relates. In other words, in the present case, the
question may arise whether it is also necessary to examine the validity of
the General Assembly and Security Council resolutions establishing the
Emergency Force and deciding on the operations in the Congo. Moreover,
since the Emergency Force was established by a resolution adopted by the
General Assembly in pursuance of the Uniting for Peace resolution of 3
November 1950, the question may even arise whether the validity of that
resolution also must be verified.
As will be seen, this raises the rather delicate problem of the validity of
the acts of the United Nations. It is my view that this problem cannot be
avoided at least as far as the resolutions in which the General Assembly
authorized the expenditures in question are concerned. It will be seen
later if and how consideration also has to be given to the validity of the
earlier resolutions.
7. The rules under which in any legal system the problem of the validity of
legal acts is considered face two different requirements. On the one hand
there is the requirement of legality, that is to say, conformity of the act
with the legal rule. Exclusive consideration of that requirement would have
as its consequence the denial of any value to an act not in conformity with
the legal rule. On the other hand, however, there is the requirement of
certainty, which would be very seriously jeopardized if the validity of a
legal act were at all times open to challenge on the ground of its
non-conformity with the legal rule.
The two opposed requirements which I have indicated have been happily
reconciled in national legal systems, particularly as regards the acts of
public authorities and, even more so, as regards administrative acts.
It must first of all be observed that in municipal law there are a whole
number of cases in which the non-conformity of an act with the legal rule
constitutes a mere irregularity having no effect on the validity of the act.
But there are more serious cases where lack of conformity, on the contrary,
entails the invalidity of the act. Such invalidity may well constitute
absolute nullity, operating [p 222] ipso jure, so that the act which it
affects produces no legal effects. However, in municipal law cases of
absolute nullity are of a quite exceptional character. In general, the
invalidity of acts in municipal law, and in particular administrative acts,
involves not the nullity (absolute nullity), but rather the voidability of
the act. A voidable act is an act which, in spite of the defects by which it
is vitiated, produces all its effects as long as it is not annulled by the
competent organ. It is only as a result of being annulled that the act
loses, retroactively, its effectiveness. This aspect of invalidity of an
administrative act as voidability in municipal law is closely linked with
the system of the means of recourse open in such municipal law against the
illegitimacy of administrative acts, and which have to be used in a
prescribed form and within a fixed time-limit.
It follows that an administrative act, even though vitiated by a defect of
such a nature as to entail invalidity, may in spite of that produce all the
effects proper to a completely valid act: not only temporary, but also
permanent, effects. First, this occurs wherever the existing remedies are
not made use of in the manner and within the time-limits prescribed.
Secondly, the same occurs when the competent supervisory organ, although the
matter has been properly referred to it, does not recognize the defect by
which the act is objectively vitiated. It is precisely by prescribing on the
one hand forms and time-limits in which the existing remedies against
illegitimate acts may be sought, and by conferring on the other hand
finality on the supervision exercised by the competent authority, that
municipal law ensures that the requirement of certainty in connection with
legal situations arising from administrative acts shall be satisfactorily
met.
8. In the case of acts of international organizations, and in particular the
acts of the United Nations, there is nothing comparable to the remedies
existing in domestic law in connection with administrative acts. The
consequence of this is that there is no possibility of applying the concept
of voidability to the acts of the United Nations. If an act of an organ of
the United Nations had to be considered as an invalid act, such invalidity
could constitute only the absolute nullity of the act. In other words, there
are only two alternatives for the acts of the Organization: either the act
is fully valid, or it is an absolute nullity, because absolute nullity is
the only form in which invalidity of an act of the Organization can occur.
An act of the Organization considered as invalid would be an act which had
no legal effects, precisely because it would be an absolute nullity. The
lack of effect of such an act could be alleged and a finding in that sense
obtained at any time. [p 223]
It must be recognized that there may be cases in which an act of the
Organization would have to be considered as invalid, and therefore as an
absolute nullity, with the rather serious consequences which I have just
indicated. The problem is to determine what these cases are. As will be
seen, this is a question of construction of the rules determining the
conditions for a legal act which are of the nature of absolute requirements,
that is to say where failure to satisfy the condition constitutes an
essential defect involving the invalidity of the act.
In dealing with such a question of construction, the nature and significance
of the invalidity which may be held to attach to an act of the Organization
must never be lost sight of, such invalidity constituting, as has been seen,
the absolute nullity and not the voidability of the act. This prevents the
conditions for the validity of acts of the Organization being given an
extension similar to that of the conditions for the validity of acts under
municipal law, and in particular administrative acts. If, ignoring the
difference between the nature of the invalidity of domestic administrative
acts (voidability) and the nature of the invalidity of acts of the United
Nations (absolute nullity), the same extension were given to the conditions
for the validity of both these classes of act, very serious consequences
would result for the certainty of the legal situations arising from the acts
of the Organization. The effectiveness of such acts would be laid open to
perpetual uncertainty, because of the lack in the case of acts of the
Organization of the means by which the need for certainty is satisfied in
connection with administrative acts under domestic law.
This makes it necessary to put a very strict construction on the rules by
which the conditions for the validity of acts of the Organization are
determined, and hence to regard to a large extent the nonconformity of the
act with a legal rule as a mere irregularity having no effect on the
validity of the act. It is only in especially serious cases that an act of
the Organization could be regarded as invalid, and hence an absolute
nullity. Examples might be a resolution which had not obtained the required
majority, or a resolution vitiated by a manifest excès de pouvoir (such as,
in particular, a resolution the subject of which had nothing to do with the
purposes of the Organization).
It is otherwise in the case, for example, of violation of the rules
governing competence. The violation of such rules in domestic law involves
the invalidity of the act in the usual form of voidability. For the reasons
I have given, the violation of the rules concerning competence by an organ
of the United Nations cannot entail the voidability of the act; but the same
violation does not have the much more serious effect of the absolute nullity
of the act. This means that the failure of the act to conform to the rules
concerning competence has no influence on the validity of the act, which [p
224] amounts to saying that each organ of the United Nations is the judge of
its own competence.
9. The restrictive application of the concept of invalidity to the
resolutions in which the General Assembly authorized the expenditures in
question in this case must in my view lead to a conclu-sion upholding the
full validity of those resolutions.
It has already been said that the General Assembly may not in this field act
in an arbitrary way. The Assembly is bound by the provisions of the Charter
which it must interpret and apply cor-rectly. Under these rules, the
Assembly is required to establish and appreciate correctly a body of factual
circumstances. It must also verify the validity of the resolutions of the
different United Nations organs concerning the activity to which the
expenditure to be authorized or not relates; this naturally has to be done
in accordance with the very restrictive criteria indicated above.
However, it is one thing to say that the General Assembly is bound by the
rules of the Charter and by the actual facts or legal situations to which
those rules relate; it would be quite another to say that this obligation on
the General Assembly has its sanction in the invalidity of resolutions of
the Assembly not in conformity with that obligation. For the latter it would
be necessary to show that the legal rule concerning the approval of the
budget and hence authorization of expenses by the General Assembly (the rule
arising from Article 17, paragraph I, of the Charter) makes the validity of
the Assembly's resolution dependent both on conformity of the resolution
with the provisions of the Charter and on the correctness of the Assembly's
ascertainment of situations of fact or of law in any way relevant. It is my
view that this is not possible.
In my view it is not possible to suppose that the Charter leaves it open to
any State Member to claim at any time that an Assembly resolution
authorizing a particular expense has never had any legal effect whatever, On
the ground that the resolution is based on a wrong interpretation of the
Charter or an incorrect ascertainment of situations of fact or of law. It
must on the contrary be supposed that the Charter confers finality on the
Assembly's resolution irrespective of the reasons, whether they are correct
or not, on which the resolution is based; and this must be so even in a
field in which the Assembly does not have true discretionary power.
10. Once the validity of the resolutions in which the General Assembly
authorized the expenditures relating to the Emergency Force and the
operations in the Congo has been recognized, it will be seen that the
question of validity does not arise at all in connec-[p 225]tion with the
resolutions which are presupposed by those I have just mentioned, that is to
say, the resolutions by which the General Assembly established the Emergency
Force and the Security Council decided on the operations in the Congo.
If the question of the validity of these latter resolutions were to be
examined independently and in general terms, that is to say, as regards all
the effects which those resolutions seek to produce, it would have to be
answered in the affirmative, for reasons similar to those which I have given
in connection with the validity of the General Assembly resolutions
authorizing the expenditures. But the problem of the validity of those
resolutions, which might be called the basic resolutions, does not arise at
all in connection with the answer to be given to the question submitted to
the Court.
For the purposes of that question, the basic resolutions have not to be
taken into account as regards the totality of their effects. They constitute
only circumstances which the Assembly had to have regard to and satisfy
itself as to the existence of. For reasons that I have indicated, the
examination by the Assembly of the validity of the basic resolutions for the
purpose of authorizing the relevant expenses is final. In consequence, the
validity of the basic resolutions cannot be challenged with the purpose of
challenging the validity of the Assembly resolutions authorizing the
expenses; that would be so even on the supposition (which in my view must be
dismissed) of the validity of the basic resolutions having to be denied in
respect of their other effects.
To say that in order to authorize a particular expenditure the General
Assembly must inter alia satisfy itself of the validity of the resolutions
concerning the activity to which the expenditure relates, and that its
judgment is final, does not mean that the General Assembly exercises true
supervision over those resolutions. This is because the General Assembly's
examination does not relate to the resolutions in question as far as the
whole of their effects is concerned, but relates to those resolutions only
as a circumstance which the General Assembly has to take into account with a
view to authorizing expenditure. The finality of the Assembly's judgment is
but an aspect of the finality of the authorization of the expenditure.
II. My reasoning may be summarized in the following propositions:
(I) "Expenses of the Organization", within the meaning of Article 17,
paragraph 2, of the Charter are expenses which have been validly authorized
by the General Assembly under paragraph 1 of that Article;
(2) The resolutions in which the General Assembly authorized the
expenditures relating to the Emergency Force and the operations in the
Congo are valid resolutions, irrespective of the validity of the General
Assembly and Security Council resolutions by which [p 226] the Emergency
Force was established and the operations in the Congo decided upon;
(3) Consequently, the expenditures relating to the Emergency Force and the
operations in the Congo constitute "expenses of the Organization" within the
meaning of Article 17, paragraph 2, of the Charter.
(Signed) Gaetano Morelli.
[p 227]
DISSENTING OPINION OF PRESIDENT WINIARSKI
[Translation]
To my great regret I am unable to agree with the Court's affirmative reply
to the question submitted to it by the request of the General Assembly. I
shall indicate my reasons as briefly as possible, confining myself to what
is essential. I shall therefore refrain from discussing the points on which
I am not in agreement with the Opinion, such, for example, as the
interpretation of Article n, paragraph 2, of the Charter.
In the first place it would seem that although the request appears to
contain an exact statement of the question, as required by Article 65 of the
Statute of the Court, that question requires to be interpreted, and here I
differ from the view expressed in the Opinion. The Opinion distinguishes
three questions in paragraph 2 of Article 17: the identification of the
expenses of the Organization, the apportionment of those expenses, and the
obligation of Member States to bear them, and it states that it is only the
first of these which is raised by the request for opinion. This limitation
of the problem seems to me to be pregnant with consequences. Again, the
Opinion says: "The amount of what are unquestionably 'expenses of the
Organization within the meaning of Article 17; paragraph 2' is not in its
entirety apportioned by the General Assembly and paid for by the
contributions of Member States, since the Organization has other sources of
income." It follows that the reply that all the expenditures authorized by
the General Assembly which are enumerated in the request constitute
"expenses of the Organization within the meaning of Article 17, paragraph 2"
provides no clear indication to the General Assembly, which expressed in
the preamble "its need for authoritative legal guidance as to obligations of
Member States ... in the matter of financing the United Nations operations
in the Congo and in the Middle East".
The question might however be understood in a different way: the reference
to paragraph 2 of Article 17 limits the scope of the question and gives it
its true meaning. Of the total amount of the expenses, those which are not
met by voluntary contributions or from other sources of income in accordance
with the decisions of the General Assembly must be borne by the Members
according to the apportionment decided upon by the General Assembly. The
terms of the resolution appear to confirm this interpretation. The reference
to the need for legal guidance is illustrated by the facts set out in the
dossier. According to the "Statement on the collection of contributions as
at 31 December 1961" (Congo ad hoc Account) for the period 14 July to 31
December 1960, 35 Member States paid their assessed contributions, 64 States
did not pay; for the [p 228] period 1 January to 31 October 1961 the
proportion of those who paid to those who did not pay was 21 to 78. Long and
important discussions, which are set out in the dossier, began in the
General Assembly from the time of the earliest resolutions in 1956 and
continued until December 1961 when the proposal to request an advisory
opinion was adopted. The debates revealed profound differences of view-as to
the methods to be adopted to meet the expenditures relating to the
operations in the Middle East and in the Congo. These facts confirm the view
that in the question formulated in the request for opinion the emphasis
must be placed on the words "within the meaning of Article 17, paragraph 2,
of the Charter".
In the course of the lengthy debates of the Working Group of Fifteen
(June-November 1961) the question of the conformity with the Charter of the
General Assembly resolutions relating to the financing of the
above-mentioned operations was discussed. Thus, for instance, a statement
was formulated which appeared to go to the heart of the problem:
"II. When the Security Council or the General Assembly recommends the
execution, with United Nations military forces, of an operation for the
maintenance of peace; the expenses involved in such operations cannot be
considered as 'expenses of the Organiza-tion' within the meaning of Article
17 of the Charter and the financial contribution of Members to the cost of
such operations will be of a voluntary nature."
Here, too, the voting revealed a deep division of opinion. In these
circumstances, the French delegation proposed an amendment to the text of
the question to be submitted to the Court; the amendment was to the effect
that it should first be asked whether the expenditures referred to were
"decided in conformity with the provisions of the Charter". This amendment
was rejected, a fact which has been interpreted in different ways; this
question having been considered in the Opinion, it is nor for me to consider
it further.
By definition, only lawful expenses can be expenses of the Organization;
they must be validly approved and validly apportioned among the Members.
The question is therefore one of the interpretation of the Charter; the
Court cannot answer the question submitted to it without examining the
problem of the validity of the resolutions authorizing the expenditures,
that is to say, the problem of their conformity with the Charter.
It has been said that since the General Assembly has exclusive powers in
budgetary matters—which is not disputed—if it takes a decision by the
requisite majority, the expenses are validly authorized and apportioned in
accordance with Article 17, paragraphs 1 and 2. But that is a purely formal
validity, which is a primary condition of any authorization. To limit the
question to that of formal validity would be too simple and would not
justify the requesting of the Court's opinion. [p 229]
In the Court's Advisory Opinion on the interpretation of Article 4 of the
Charter (1948) it is said: "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." The French delegation's amendment did not expressly ask that the
Court should examine the Security Council and General Assembly resolutions
in pursuance of which operations were undertaken in the Middle East and in
the Congo; but in examining the conformity with the Charter of the
resolutions authorizing the expenditures, the Court would inevitably have
been led to examine this problem too; this has been very clearly shown by
Judge Bustamante y Rivero in his dissenting opinion, and I can therefore
confine myself to the General Assembly resolutions authorizing the
expenditures.
But it has also been said that the Assembly, which is a political organ,
interprets the Charter by applying it and that its interpretation is final.
This is true to a certain extent and particularly where its interpretation
has been generally accepted by Member States. This question was very
thoroughly considered at the San Francisco Conference and the results of the
deliberations were formulated in the report of the Special Subcommittee of
Committee IV/2 which concludes thus:
"It is to be understood, of course, that if an interpretation made by any
organ of the Organization or by a committee of jurists is not generally
acceptable it will be without binding force."
And the report continues:
"In such circumstances, or in cases where it is desired to establish an
authoritative interpretation as a precedent for the future, it may be
necessary to embody the interpretation in an amendment to the Charter. This
may always be accomplished by recourse to the procedure provided for
amendment."
This decision was adopted—unopposed—on 22 June 1945; the rule would seem
still to hold good.
***
It is recognized in the Opinion that to interpret paragraph 2 of Article 17
it is necessary to look not only at Article 17 as a whole, but also at all
the other relevant provisions of the Charter. In this respect the Opinion
follows the rule which has been well established since the time of Roman
law: "Incivile est (this is a very strong expression) nisi tota lege
perspecta, una aliqua partícula ejus proposita judicare vel responderé." In
his celebrated charter on the interpretation of treaties (Book II, Chapter
XVII) Vattel applies the same rule to international law.[p 230]
It is thus this general rule for the interpretation of statutes and
conventions which it is sought to follow in the Opinion. I regret that I
cannot always agree with the result of this examination.
The Opinion attaches great importance to the purposes of the Organization as
set forth in Article I of the Charter. Indeed, it has been asserted that
these purposes and in particular the maintenance of international peace and
security may provide a legal justification for certain decisions, even if
these are not in conformity with the Charter, and that in any event a
consideration of the purposes must furnish guidance as to the interpretation
of the Charter. In the case before the Court, however, this argument
certainly has not the importance which there is a temptation to attribute to
it; on the contrary, care must be taken not to draw conclusions too readily
from it.
The Charter has set forth the purposes of the United Nations in very wide,
and for that reason too indefinite, terms. But—apart from the resources,
including the financial resources, of the Organization—it does not follow,
far from it, that the Organization is entitled to seek to achieve those
purposes by no matter what means. The fact that an organ of the United
Nations is seeking to achieve one of those purposes does not suffice to
render its action lawful. The Charter, a multilateral treaty which was the
result of prolonged and laborious negotiations, carefully created organs
and determined their competence and means of action.
The intention of those who drafted it was clearly to abandon the possibility
of useful action rather than to sacrifice the balance of carefully
established fields of competence, as can be seen, for example, in the case
of the voting in the Security Council. It is only by such procedures, which
were clearly defined, that the United Nations can seek to achieve its
purposes. It may be that the United Nations is sometimes not in a position
to undertake action which would be useful for the maintenance of
international peace and security or for one or another of the purposes
indicated in I of the Charter, but that is the way in which the Organization
was conceived and brought into being.
The same reasoning applies to the rule of construction known as the rule of
effectiveness (ut res magis valeat quam pereat) and, perhaps less strictly,
to the doctrine of implied powers.
Reliance has been placed upon practice as providing justification for an
affirmative answer to the question submitted to the Court. The technical
budgetary practice of the Organization has no bearing upon the question,
which is a question of law. From the strictly legal point of view, it is
difficult to find here anything that would justify a firm conclusion. The
way in which the parties have consistently applied a convention may
certainly provide evidence of their intention for the purpose of its
interpretation. Furthermore, if a practice is introduced without opposition
in the relations [p 231] between the contracting parties, this may bring
about, at the end of a certain period, a modification of a treaty rule, but
in that event the very process of the formation of the new rule provides the
guarantee of the consent of the parties. In the present case the controversy
arose practically from the beginning in 1956, and the Secretary-General, in
paragraph 15 of his report of 6 November of that year, said the following:
"The question of how the Force should be financed likewise requires further
study. A basic rule which, at least, could be applied provisionally, would
be that a nation providing a unit would be responsible for all costs for
equipment and salaries, while all other costs should be financed outside the
normal budget of the United Nations."
And resolution 1001 (ES-I) adopted by the General Assembly on 17 November
1956 "approves provisionally the basic rule concerning the financing of the
Force laid down in paragraph 15 of the Secretary-General's report" (para.
5).
In resolution 1089 (XI) of 21 December 1956 we read:
"Considering ... that several divergent views, not yet reconciled, have been
held by various Member States on contributions or on the method suggested by
the Secretary-General for obtaining such contributions..."
Resolution 1090 (XI) of 27 February 1957 "decides that the General Assembly,
at its twelfth session/shall consider the basis for financing any costs of
the Force in excess of $10 million not covered by voluntary contributions".
Resolution 1263 (XIII) of 14 November 1958 is still seeking to see matters
clearly: it "requests the Fifth Committee to recommend such action as may be
necessary to finance the continuing operation of the United Nations
Emergency Force".
Lastly, resolution 1337 (XIII) of 13 December 1958 "requests the
Secretary-General to consult with the Governments of Member States with
respect to their views concerning the manner of financing the Force in the
future..."
As settlements fell due, the expenses were in large part met out of various
funds, even after obligatory contributions had been voted for.
In respect of the financing of the United Nations operations in the Congo,
the General Assembly resolutions decided that the expenses should be
apportioned among the Member States according to the ordinary scale of
assessments, but these resolutions, as I have indicated, were not followed
and the number of Member States which refuse to pay is too large for it to
be possible to disregard the legal significance of this fact. I would recall
that the military [p 232] operations in Korea were paid for by voluntary
contributions as were a number of "civilian" operations in which there is
also to be descerned acertain connection with international peace and
security. It is therefore difficult to assert, in the case before the Court,
either that practice can furnish a canon of construction warranting an
affirmative answer to the question addressed to the Court, or that it may
have contributed to the establishment of a legal rule particular to the
Organization, created praeter legem, and, still less, that it can have done
so contra legem.
It is sometimes difficult to attribute any precise legal significance to the
conduct of the contracting parties, because it is not always possible to
know with certainty whether they have acted in a certain manner because they
consider that the law so requires or allows, or for reasons of expediency.
However, in the case referred to the Court, it is established that some at
least of the Member States refuse to comply with the decisions of the
General Assembly because they dispute the conformity of those decisions with
the Charter. Apparently they are of opinion that the resolutions cannot be
relied upon as against them although they may be valid and binding in
respect of other States. What is therefore involved is the validity of the
Assembly's resolutions in respect of those States, or the right to rely upon
them as against those States.
It has been said that the nullity of a legal instrument can be relied upon
only when" there has been a finding of nullity by a competent tribunal. This
reasoning must be regarded as echoing the position in municipal or State
law, in the international legal system. In the international legal system,
however, there is, in the absence of agreement to the contrary, no tribunal
competent to make a finding of nullity. It is the State which regards itself
as the injured party which itself rejects a legal instrument vitiated, in
its opinion, by such defects as to render it a nullity. Such a decision, is
obviously a grave one and one to which resort can be had only in exceptional
cases, but one which is nevertheless sometimes inevitable and which is
recognized as such by general international law.
A refusal to pay, as in the case before the Court, may be regarded by a
Member State, loyal and indeed devoted to the Organization, as the only
means of protesting against a resolution of the majority which, in its
opinion, disregards the true meaning of the Charter and adopts in connection
with it a decision which is legally invalid; in such a case it constitutes a
grave symptom indicative of serious disagreement as to the interpretation of
the Charter. As this Court has on one occasion said, the United Nations is
not a super-State, and paragraph I of Article 2 of the Charter states that
"The Organization is based on the principle of the sovereign equality of all
its Members."
A serious legal objection to the validity of the General Assembly
resolutions authorizing and apportioning the expenses may be briefly
formulated as follows: these resolutions ignore the fact that [p 233] the
resolutions authorizing the operations have the character of
recommendations. By levying contributions to meet the cost of the operations
from all States in accordance with Article 17, paragraph 2, the resolutions
of the General Assembly appear to disregard the fundamental difference
between the decisions of the Security Council which are binding on all
Member States (Chapter VII of the Charter) and recommendations which are not
binding except on States which have accepted them.
As is noted in the Opinion the General Assembly does not indicate the
articles of the Charter on which its resolutions are based. The same is true
of the Security Council. Of 29 resolutions listed in the request, only one,
that of the Security Council of 9 August 1960, in which all Member States
are called upon to accept and carry out its decisions, refers to Articles 25
and 49 which do not appear to be of such a character as to enlighten the
Court (the General Assembly repeated the words in its resolution 1474
(ES-IV) of 20 November 1960); at one point, the Secretary-General envisaged,
with some hesitation, the possibility of invoking Article 40; finally he
adopted a negative position: the United Nations operations in the Middle
East and in the Congo were not undertaken in pursuance of binding decisions
under Chapter VII of the Charter. The General Assembly appears to have
adopted the same position and this view is shared in the Opinion.
But, if there is no longer any question of the binding decisions of the
Security Council referred to in Chapter VII, then these are recommendations;
recommendations of the Security Council and the General Assembly; General
Assembly resolution 377 (V), the conformity of which with the Charter has
itself sometimes been regarded as at least dubious, itself only speaks of
recommendations.
The difference between binding decisions and recommendations constitutes one
of the bases of the whole structure of the Charter. Decisions are the
exception in the system of the means provided for the maintenance of
international peace and security; they are taken in grave cases and it is
only in those cases that Member States have consented to accept the
necessary limitation of the exercise of their sovereignty. Recommendations
are never binding and the United Nations must in all its activities ever
have in view that its means of action are thus limited.
It follows that if it be recognized that the expenditures enumerated in the
request constitute expenses of the Organization, inevitably the question
arises whether participation in these expenses is obligatory for all Member
States, as appears to be suggested by the question in the request and as is
accepted in the Opinion. And yet it is apparent that the resolutions
approving and apportioning these expenses are valid and binding only in
respect of the Member States which have accepted the recommendations. [p
234]
It is difficult to see by what process of reasoning recommendations could be
held to be binding on States which have not accepted them. It is difficult
to see how it can be conceived that a recommendation is partially binding,
and that on what is perhaps the most vital point, the financial contribution
levied by the General Assembly under the conditions of paragraph 2 of
Article 17. It is no less difficult to see at what point in time the
transformation of a non-binding recommendation into a partially binding
recommendation is supposed to take place, at what point in time a legal
obligation is supposed to come into being for a Member State which has not
accepted it.
This leaves unresolved the question how and when the acceptance of a
recommendation by a Member State, or the refusal to accept it, is to be
placed on record, but the answer to that question should present no
difficulty for the Organization.
To the question as framed in the request, which appears to contemplate only
the answer "yes" or "no", it is not, in my opinion, possible to give a
legally adequate answer. My reply can only be in the negative.
(Signed) B. Winiarski.
[p 235]
DISSENTING OPINION OF JUDGE BASDEVANT
[Translation]
In accordance with Article 65, paragraph 2, of the Statute of the Court, the
request asking the Court to give an advisory opinion must contain "an exact
statement of the question upon which an opinion is required". It is in these
circumstances and on that basis that, under Article 65, paragraph 1, the
Court "may give an advisory opinion".
This provision has not been complied with.
The request for an opinion starts from a given factual element, namely the
existence of "expenditures authorized in General Assembly resolutions". As
stated the request for an opinion does not determine whether the Court
should purely and simply start from the existence of "expenditures
authorized" or whether it should first of all ascertain whether those
expenditures were properly authorized by the General Assembly. If the Court
is purely and simply to start from the existence of "expenditures
authorized" the reply to the question put would appear to be fairly simple:
the expenditures were an element of the activity of the United Nations as
such, they were incurred and made under its responsibility, and they
thereby became expenses of the Organization. Reference to the activities of
the United Nations in making these expenditures may be understood as being
the sense in which the request for an opinion was formulated. This request
relates to expenditures made up to the end of 1961. Nothing is contemplated
or, still less, expressly stated, as regards expenditures made subsequent
to 1 January 1962. An enquiry into whether the former were decided upon and
authorized in accordance with a particular provision of the Charter may
have seemed to have no practical significance, the expenditures having
already been made. The question of the financing of those expenditures, of
their apportionment among the States Members of the United Nations, and of
the contribution to be borne by them would then arise, but this question has
not been included in the request for opinion. That request may be understood
as asking the Court whether the "expenditures authorized" which are
submitted to it constitute "expenses of the Organization".
But the factual element set forth in the request for opinion may also be
construed as including a legal question, namely: were the authorized
expenditures referred to authorized in a proper manner? This question
occupied a substantial place in the oral proceedings before the Court and,
consequently, in the Opinion. In noting this I am by that very fact
compelled also to note that the request for opinion did not, on this
essential point, comply with Article 65, [p 236] paragraph 2, of the Statute
which requires "an exact statement of the question upon which an opinion is
required".
After this inadequacy regarding the indication of the factual element which
the Court must take as its point of departure, the Court was faced with an
even more serious uncertainty in the course and at the end of the
examination which it was invited to undertake.
The Court is in the position of having been invited to determine whether the
"expenditures authorized" submitted to it deserve the legal characterization
of "expenses of the Organization". The request provides no criterion
enabling this characterization to be defined more explicitly. It confines
itself to quoting this term and adding "within the meaning of Article 17,
paragraph 2, of the Charter of the United Nations". These additional words
add nothing concerning the actual meaning of the term used, but simply set
forth the consequences which the General Assembly may attach to these
expenses when it comes to exercise its powers of apportionment. In using
the term "expenses of the Organization" under consideration neither Article
17, paragraph 2, nor the request state what is comprised in the term.
The Court has not deemed it possible to confine itself to this reference. At
the outset of its study of the legal question submitted to it the Court
addressed itself to the law applicable to it and examined Article 17 of the
Charter as a whole, supplementing its study by the application of which this
provision has been the subject. The Court has not confined itself to a
reading of and commentary on the paragraph 2 of Article 17 referred to in
the request for opinion. The Court has thereby provided the best
demonstration of the fact that the mere reference to paragraph 2 of Article
17 in the request did not correspond to the requirement of paragraph 2 of
Article 65 of the Statute of the Court which is that there should be "an
exact statement of the question upon which an opinion is required".
It may even be added that the reference to paragraph 2 of Article 17 of the
Charter in the request for opinion appears to have been deliberately
imprecise. No explanation is given as to what must be understood by
"expenses of the Organization". It would seem that reference is made to such
expenses only to introduce a reference to the manner in which these expenses
are to be treated, the manner in which they are to be apportioned and borne.
That does not, however, come within the subject of the present request for
opinion.
Consequently, and counter to the wording of the request in its reference to
Article 17, paragraph 2, the Court, without having been invited to do so by
the terms of the request, has carefully given room to Article 17 as a whole,
and especially to its first paragraph. In it the Court has found the source
of the General Assembly's budgetary power, its power to consider and approve
expenses, and finally the Court has had reference to it to determine what
must be [p 237] understood by "expenses of the Organization". The
interpretation of Article 17 as a whole, supported by the practice to which
the Court has given attention, has acquired in the reasoning of the Opinion
a place which was not to be foreseen from the terms of the request.
To note this is to note that the request was not stated in the terms
required by Article 65, paragraph 2, of the Statute.
The Court has adopted an interpretation of the request for opinion which it
was not by the terms of that request bound to do. Starting from this
interpretation and on the basis of considerations on the cogency of which it
would not be fitting for me to express a judgment, the Court, seeking
guidance from the Charter, its main provisions, its spirit, the purposes of
the United Nations and the practice of the United Nations, has concentrated
mainly on the budgetary competence conferred on the General Assembly. This
has led the Court to declare that the expenditures submitted to it were
"authorized by the General Assembly" in a manner in conformity with the
Charter. If, following the example of the request for opinion, it is desired
to state that these expenditures "constitute expenses of the Organization"
and even to add "within the meaning of Article 17, paragraph 2, of the
Charter", that is only a form of words.
I consider that on the basis of the considerations adduced by the Court in
the reasons for its Opinion, it would have been preferable for the wording
of the operative provision of the Opinion not to be taken from the
terminology used in the request. The reference in the request to "expenses
of the Organization" with the further detail "within the meaning of Article
17, paragraph 2" seems to have in mind the apportionment of those expenses
by the General Assembly and the burden thereof falling on the States
Members. These two questions, however, do not come within the request
submitted to the Court.
There is still another point which seems to me to be deserving of attention.
By its terms the request for opinion is concerned only with the authorized
expenditures which are referred to in it and which have been authorized up
to 31 December 1961. For what may be termed a transitional period,
expenditures have been authorized by the General Assembly up to 30 June
1962. After that date no provision has been made.
Thus the Court is invited to give the support of its legal opinion only in
respect of the view which may be formed after the event of what has been
done in the past. The Court has not, on the other hand, been invited to give
guidance to the other principal organs of the United Nations on what should
be done in respect of their undertakings in the Congo and in the matter of
the Emergency Force. Where it would have been possible to obtain from an
opi-[p 238]nion requested of the Court collaboration in the present work of
the United Nations, it has been sought to obtain from the Court only a
retrospective evaluation of what was done up to the end of 1961.
The request-for opinion did not contain that exact statement which should
have led the Court to reply to it and thereby to give to the other higher
organs of the United Nations the collaboration due to them from it.
I should be departing from my proper role if, by reference to the preamble
of General Assembly resolution 1731 (XVI) of 20 December 1961, I sought to
divine what might have been done to secure that collaboration between the
principal organs of the United Nations.
I regret to have to express my conviction that the request for opinion has
not been presented in a proper fashion. It is for this reason that I
consider myself unable to concur in the Opinion by which the Court replies
to the request, submitted to it.
(Signed) Basdevant.
[p 239]
DISSENTING OPINION OF JUDGE MORENO QUINTANA [Translation]
I greatly regret that I am unable to concur in the advisory opinion given by
the majority of my colleagues concerning the financial obligations of
Members of the United Nations. It would have been for me a matter of great
satisfaction to contribute in the exercise of my judicial function to the
most effective realization of the essential purpose of the Organization. But
I cannot depart from certain legal concepts which to my mind are of cardinal
importance for the interpretation of the Charter; they are those which, in
the present case, preclude the Court from giving the opinion requested of
it.
***
By its resolution 1731 (XVI) of 20 December 1961 the General Assembly of the
United Nations requested of the International Court of Justice an advisory
opinion which raises an important question, that of the obligations of
Member States in the matter of financing the United Nations operations in
the Congo and in the Middle East.
On 12 February 1962 the Secretary-General transmitted to the Court an
Introductory Note. Seventeen written statements by Member States were also
received by the Court on the question of whether the various expenses
incurred by the United Nations in financing its operations in the Congo and
in the Gaza strip constitute expenses within the meaning of Article 17,
paragraph 2, of the Charter. Four other written statements were later
presented to the Court. A voluminous dossier consisting of five parts was
also transmitted to the Court. This dossier contains a large number of
documents and two notes which inform the Court of decisively important facts
and circumstances, with a view to enabling it to pronounce on the question
submitted to it. Such matters are the debates in organs of the United
Nations which led the General Assembly to ask the Court for an advisory
opinion; the operations undertaken by the United Nations in the Congo
(ONUC); the operations of the United Nations Emergency Force in the Middle
East (UNEF), the drafting and adoption by the San Francisco Conference in
1945 of Article 17, paragraph 2, of the Charter; and the procedure and
practice of the organs of the United Nations in applying that provision.
***
[p 240]
At the origin of the request for an advisory opinion are the discussions
which took place between the fifteen members of the Working Group set up on
21 April 1961 by the General Assembly to examine the administrative and
budgetary procedures of the United Nations. A number of views were expressed
by these members and by the Secretary-General in the Working Group on the
legal nature of the financial obligations arising from peace-keeping
operations. Having regard to their divergence, the Working Group advised the
General Assembly to ask the Court for an advisory opinion, and the General
Assembly decided on the wording of the question.
The question was put in a concrete way by that organ, which recognized that
it had need for authoritative legal guidance and listed the General Assembly
resolutions on the expenditures in-curred through the operations undertaken
in pursuance of various resolutions of the Security Council and of the
General Assembly itself. The wording of the question, from the standpoint of
its legal scope, may be reduced to the following: Do the expenditures
authorized by the General Assembly with regard to the operations undertaken
by the United Nations in the Congo and Middle East constitute expenses of
the Organization within the meaning of Article 17, paragraph 2, of the
Charter?
The Court has already, from 1948 to 1955, devoted six Advisory Opinions to
its task in connection with the interpretation of the Charter. These
Opinions were, in a sense, at the foundation of the legal implementation of
that instrument. They dealt with the admission of new Members to the United
Nations, reparation for injuries suffered in the service of the United
Nations, the competence of the General Assembly for the admission of a
State to the United Nations, the international status of South West Africa,
the effect of awards of compensation made by the United Nations
Administrative Tribunal and the voting procedure of the General Assembly
with regard to the aforementioned territory. The exercise of the Court's
advisory jurisdiction which derives from Article 96 of the Charter and from
Article 65 of the Statute of the Court— the inter pretatio legis of the
Roman jurisconsults—is growing from year to year. It may soon perhaps become
more important than the Court's jurisdiction in contentious proceedings,
which does not always satisfy the aspirations of those who would have
preferred the tribunal with international jurisdiction to be established on
other bases. To say that this new advisory opinion might decide the fate of
the United Nations in the years to come would certainly be rash, but it may
at least be affirmed that its effects would be far-reaching. It relates to a
matter as decisive as that of the financing of the Organization for the
achievement of its purpose of maintaining international peace and security.
An egalitarian solution, taking the financing of operations mainly based on
military action as being a normal expense of the [p 241] Organization to be
apportioned among all Members States, seems an attractive one from the point
of view of the cause served by the purpose in question. But it does not seem
to be very desirable in the light of the small financial resources of a
great number of Member States, many of which are under-developed countries.
On the other hand, a qualified solution which made such financing an
exclusive responsibility of the members of the Security Council would be
directed at the States directly committed to that cause. It would perhaps
have the disadvantage of limiting all action in this connection out of
concern for the financial consequences. That then is the setting today of
the question put to the Court. But the latter has to examine the question
from the point of view of law and not from the political point of view.
***
To situate the context in which the question submitted to the Court arises,
it is necessary to go back to the origins of the financial difficulties
encountered by the United Nations when it had to assist Member States which
asked for the Organization's support with a view to the maintenance of the
principal purpose assigned to it by the Charter. A short historical account
would seem in any case to be necessary.
In October 1956, an act of aggression was launched against Egypt, a Member
State of the United Nations, by three other Member States, two of which were
permanent members of the Security Council. Since the lack of agreement among
the permanent members prevented the Security Council from fulfilling its
essential task, the General Assembly set up an international emergency force
(UNEF) and adopted the necessary measures. Seven resolutions of that organ
adopted between 1956 and 1958 dealt with the matter. Eight other
resolutions, from 1956 to 1960, dealt with the financing of the related
operations. The request for an opinion lists these. In short, having regard
to the views expressed on several occasions in the competent organs of the
United Nations by the Secretary-General, the General Assembly finally took
up the position indicated in its resolution 1575 (XV) of 20 December 1960,
according to which the amount authorized for the financing of the
expenditure on the operations in the Middle East for 1961 would be met by
all Member States on the basis of the regular scale of assessment.
Soon after, as a result of the state of anarchy into which the Congo, a new
Member of the United Nations, seemed to be falling, in 1960 and 1961 the
Security Council adopted five resolutions which decided on operations by the
Organization in that country (ONUC); and, in the same years, the General
Assembly in its turn adopted four resolutions on the subject. The financing
of these operations was the subject, also in 1960 and in 1961, of five
resolutions by the General Assembly. All these resolutions are indicated [p
242] in the request for opinion. Although the Security Council adopted
measures, in the case of the Congo, which it could not take in the case of
the Middle East, it did not consider the question of financing them. Lengthy
debates began in the Fifth Committee, where various views on the subject
were expressed. On 20 December 1960, the General Assembly declared in its
resolution 1583 (XV) that the expenses involved in the operations in the
Congo constituted expenses of the Organization within the meaning of Article
17, paragraph 2, of the Charter, and that the assessment thereof against
Member States created binding legal obligations on them to pay their
assessed shares.
This historical account shows how, faced with divergent opinions, the
General Assembly acted to assure the efficacy of the measures taken by
itself or by the Security Council in pursuance of the lofty mission to
maintain international peace and security. Are the decisions taken by the
General Assembly on the financing of operations in the Middle East and in
the Congo binding or not binding on all the Member States of the United
Nations and, if they are binding, in what degree? That is what should be
examined.
***
The Court has received twenty-one written statements by Member States of
the United Nations on the question referred to it, in addition to the ample
account which the Secretary-General has given in his Introductory Note for
the Court. It has also heard oral statements by the representatives of nine
States which confirmed the position set forth in their written statements.
A further indication of the various positions taken up is also given by the
views more than once expressed by the Secretary-General in the Fifth
Committee and the Advisory Committee, in his reports to the General
Assembly, in the opinions expressed by various delegations at the meetings
of the competent organs, and in the legal tone itself of the resolutions of
the General Assembly. It is now necessary to extract the substance of the
various views, reduce them to common denominators so as to arrive at a
summary and a synthesis, and strike the balance.
All this material could be simplistically classified by establishing whether
the answer to the question is yes or no. But such a method would be quite
inadequate for the purposes which must be sought. Only a concrete exegisis
of the different positions taken up and the grounds on which they are based
can furnish a reasonable working basis. From this point of view, and without
taking into account certain variants or reservations which have been
expressed, four principal contentions can be discerned: an affirmative
contention, another contention apparently affirmative but subject to certain
definite conditions, a negative contention, and lastly, the contention
according to which it is not possible for the Court to pronounce on the
question. [p 243]
As an ideological position, the affirmative contention is the most
attractive. It remains to be seen whether it is correct from the legal point
of view. It takes the view that the expenses involved in the operations of
the United Nations in the Middle East and in the Congo are expenses of the
Organization within the meaning of Article 17, paragraph 2, of the Charter.
Although of a different nature from those covered by the administrative
budget, they are normal expenses to ensure the maintenance of international
peace and security, the Organization's principal purpose. They are to be
borne by all the Member States and should be apportioned among them; all the
States are under a legal obligation to pay their share according to the
scale of assessment laid down for that budget. The collection of the
payments in question is a technical matter of book-keeping which should be
solved in some appropriate way: incorporation in the ordinary budget,
setting up of an additional budget, or the opening of a special account.
Apart from questions of detail, such is the contention upheld by the
Secretary-General and adopted, presumably, by the resolutions of. the
General Assembly, in particular by resolution 1583 (XV) of 20 December
1960. This view is also upheld, in their written statements, by the
Governments of Italy, Denmark, the Netherlands, the United States of
America, Canada, Japan, Australia, the United Kingdom and Ireland; and also,
in the oral proceedings, by the Norwegian Government.
The other affirmative contention nevertheless makes its effectiveness
dependent on the fulfilment of certain conditions. It does not dispute the
legal basis of the reply to be made to the question, but it attributes a
voluntary character to the contributions requested for military operations,
and subordinates them to the capacity of the Governments concerned to pay or
to the authorization required by their constitutional processes. These
various positions were taken in 1959 by certain delegations in the Fifth
Committee.
The negative contention derives its main strength from prescriptions
concerning the distribution of functions. It comes from the fact that under
Articles 11, 39, 41, 42, 43 and 48 of the Charter, any action involving
force or the use of armed forces comes within the competence of the Security
Council. The General Assembly may make recommendations as to the maintenance
of international peace and security, but may not take measures with regard
to them. It is therefore for the Security Council and not for the General
Assembly to make the necessary financial arrangements for the fulfilment of
its specific function. Any decision taken on such a matter should be based
on the special agreements between the Security Council and the Member States
of the United Nations to which Article 43 of the Charter refers. The
expenses referred to in Article 17, paragraph 2, of the Charter are only
those of the budget drawn up for the normal activities of the Organization
and not [p 244] expenses for other activities. It is on those Member States
whose action brought about the establishment of a military force that the
obligation to contribute to financing it falls. And Member States which have
not agreed to the establishment of the force do not have that obligation.
This contention was advanced in the Fifth Committee and in various written
statements. It is the view taken, in different forms, by the Governments of
the Soviet Union, Mexico, India, Upper Volta, Czechoslovakia, Portugal,
Spain, South Africa, Byelorussia, Bulgaria, the Ukraine and Romania. It may
be deduced from it, in particular as regards the position taken up by the
States of the Soviet group, that the legal non-obligation to pay the
expenses in question is based not only on the invalidity of the resolutions
under which the operations were undertaken, but also on the fact that the
expenses are not those referred to in Article 17, paragraph 2. This last
argument, as an established fact, would straightway suffice to furnish the
reply to the question submitted in the request for an advisory opinion.
A fourth contention is that advanced by France, and deals with a fundamental
question of procedure in this matter. In this view the question put to the
Court by the request for an opinion was put in an equivocal way. The
circumstances in which the Court is being consulted are not such as to make
it possible to obtain the legal opinion which is expected of it. These
circumstances would tend to involve, by means of a devious procedure, a
revision de facto of the constitutional rules of the Charter, which would go
beyond its letter and spirit. The same point of view was also put forward by
South Africa.
***
The legal problem for the Court's consideration is, therefore, that of the
interpretation of Article 17, paragraph 2, of the Charter, which runs: "The
expenses of the Organization shall be borne by the Members as apportioned by
the General Assembly." To decide the question, it is necessary to consider
various elements of appreciation. These include the general principles
which governed the adoption of the text, the scope and significance of the
resolutions by which it has been applied, the administrative procedures and
practices followed in the matter, the preparatory work which preceded the
adoption of the text, and, finally, the exegesis of the text itself. Last of
all—unless it is done ab initio, that is a question of method—the problem of
the competence of the Court to reply to the question as it has been
submitted to it must be dealt with.
Does the provision is question, whose scope seems to be of a general nature,
apply to all the expenses of the Organization or only to the expenses
related to its normal activities? The phraseo-logy used is ambiguous and
leaves ample room for doubt. The provision must clearly have a meaning
because it is "within the mean-[p 245]ing of Article 17, paragraph 2, of the
Charter" that the General Assembly submits the question to the Court. With
this provision must also be linked that of paragraph I of the same Article,
which refers to the "budget of the Organization". Is by this budget to be
understood that relating to normal activities or one including all the
expenses, both current and extraordinary, of the Organization? For there is
a technical relationship of cause and effect between the budget which
authorizes the necessary appropriations and the resulting expenditure. No
single conclusion can be drawn from the successive positions adopted by the
General Assembly and by the Secretary-General on this problem. For, although
the final position adopted by both one and the other seems to be that which
has already been put forth, from other documents a different position
emerges. In the Secretary-General's Report of 6 November it is stated that
every nation providing a unit for UNEF. would be responsible for all costs
for equipment and salaries while all other costs should be financed outside
the normal budget of the United Nations. In its turn the General Assembly,
by its resolution 1619 (XV) of 21 April 1961, recognized that "the
extraordinary expenses for the United Nations operations in the Congo are
essentially different in nature from the expenses of the Organization under
the regular budget and that therefore a procedure different from that
applied in the case of the regular budget is required for meeting these
extraordinary expenses".
It might be considered in the first place, as a starting point for
formulating an advisory opinion on the matter, whether an international
Organization such as the United Nations does or does not enjoy the financial
independence necessary to implement the purposes and principles which are
at the basis of its existence. The reply is at once seen to be in the
affirmative. This solution was confirmed, though from different situations,
in the Advisory Opinions which the Court gave in 1949 on the reparation for
injuries suffered in the service of the United Nations, and again in 1954
on the effect of awards made by the United Nations Administrative Tribunal.
It is the necessary consequence of the establishment of an international
organization, but it does not however imply that any specific organ should
take certain measures, nor that all the expenses must necessarily be borne
by all the Members. Nothing stands in the way of an appropriate distribution
of responsibilities, obligations and powers. That depends not only upon the
degree of interest involved but also on the degree of intervention assigned
to each category of Members by the constitutive instrument of the
Organization. Each organ has its due function. The implied powers which may
derive from the Charter so that the Organization may achieve all its
purposes are not to be invoked when explicit powers provide expressly for
the eventualities under consideration. The problem, thus stated, seems to
focus on the [p 246] specific provisions which govern the functioning of the
organs and the financial arrangements of the United Nations and not on those
provisions laying down its general purposes.
The validity of the resolutions by which the General Assembly and the
Security Council undertook operations in the Middle East and in the Congo in
the name of the United Nations has been questioned by several delegations,
in particular those of Czechoslovakia, the Soviet Union and Byelorussia.
Consequently, the expenditure incurred by these operations (authorized by
resolutions of the General Assembly) would, in this view, involve no
financial obligation for Members of the Organization. From this standpoint
it may be inferred that, even if the expenditures in question might by their
nature be binding on all the Member States, the latter would nonetheless be
relieved from all obligation by virtue of the invalidity of the resolutions
at their base. An opposite reasoning is to be found in the opinion expressed
in the Fifth Committee in 1961 by the Secretary-General—and this is the
opinion of the Netherlands also—namely, that this obligation does exist in
view of the fact that the expenditures in question did not relate to action
involving force under Article 41 of the Charter, nor to the use of armed
forces provided for in Articles 42 and 43, but were expenses for the normal
activities of the Organization. The payment of these expenses would thus be
an obligation to be borne by all the Members of the United Nations, even
when the expenditure involved by the action in question was of an
extraordinary nature.
This distinction does not however seem to be well founded. There is no
warrant for it in the Charter. Any use of armed forces intended for whatever
purpose implies by definition enforcement action, and all expenses other
than those in support of the use of such forces— even those for activities
which are non-military but which relate to the operation undertaken—partake
of the same character. The case of Katanga, which from the end of 1961 until
the beginning of the present year has been the scene of events which are a
matter of public knowledge, is particularly revealing in this connection. It
would be difficult to infer therefrom a conclusion that the United Nations
forces did not undertake enforcement action, or that, even if coercive in
nature, it did not fall within the purview of Article 11 of the Charter
which refers to a "State". When there have been dead and wounded,
bombardments on both sides, when civilian popula-tions have paid the price,
when a cease-fire and other military agreements have been negotiated between
two belligerent groups, it is not easy to evade the analysis of the question
of enforcement action by restricting the interpretation to a purely
grammatical construction discountenanced in previous decisions of the Court.
Nor is it possible to disregard in such a case the action of a belligerent
community recognized under international law as possessing a legal
personality. And what would be the position if tomorrow Israeli armed
forces, renewing the aggression unleashed in 1956 against [p 247] Egypt,
attacked the Gaza strip and obliged the United Nations forces to repel them?
Would this be enforcement action or would it not? The facts would speak the
answer for themselves. It is then, as laid down in Article 24 of the
Charter, for the Security Council and not the General Assembly to exercise
the specific powers derived from the maintenance of international peace and
security.
The problem discussed by the delegations referred to and by the
Secretary-General is in every way of the greatest legal interest with
respect to the interpretation of the Charter. In its written statement the
French Government makes it an important question from the point of view of
the expenses involved. South Africa's written statement makes the same
point. This question could have been submitted to the Court as an integral
part of the request for an advisory opinion, and as a preliminary question
to the one submitted in the present request. But the General Assembly did
not see things that way, and has not asked the Court to pronounce on the
validity of the resolutions in question nor to say whether the operations
launched by the United Nations in the Middel East and in the Congo are a
consequence of the normal activity of the Organization, or whether they
constitute action involving force or the use of armed forces as provided for
in the Charter. The reply to the request which is made to the Court has been
restricted and comes exclusively within the ambit of Article 17, paragraph
2. This is a great pity, for it prevents the Court from bringing its
judgment to bear on the legally decisive factor in the case and hence
perhaps from solving the problem which is put to it for consideration.
As to the procedure and practice followed in budgetary matters by organs of
the United Nations in pursuance of the above-mentioned provision of the
Charter, it is not to be denied that they are of definite technical
importance. They show in what way the regular budget of the Organization is
drawn up, how the estimates are approved, and in what way the financial
administration is carried out. Important information is also given on other
book-keeping aspects and particularly on those concerning the special
accounts opened for the United Nations operations in the Middle East and in
the Congo. A consequence may be the adoption of an actual stand on the
problem at issue; which was the case in respect of the relevant resolutions
of the General Assembly. Certainly none of these procedures and practices
constitute an application of the law, but they do nonetheless make clear the
necessity for a technical separation between the normal administrative
expenses of the Organization and those called for by exceptional
circumstances.
The preparatory work leading to the adoption of a given text can certainly
be very useful when the text is not sufficiently clear. That is obviously
not the case with respect to Article 17, paragraph 2, of [p 248] the
Charter, which deals without any doubt with the expenses of the
Organization. But to what expenses does it refer, since it does not limit
them to certain expenses only nor does it include them all? For it was
stressed in the debates of the special committee of the San Francisco
Conference that the General Assembly was the only organ of the United
Nations authorized to approve the budget of the Organization, that the
expenses were to be borne by its Members, that the General Assembly should
fix the scale of contributions, etc. None of these arguments however
constitutes a decisive factor for solving the present case. They may be used
to support either a liberal or a restrictive construction. From the work of
the San Francisco Conference, a conclusion a contrario sensu might however
be inferred from what was said as to the application of the sanction
provided for by Article 19 of the Charter, namely that if expenditures of
the kind under discussion do not involve the application of the sanction in
question they are not the expenses mentioned in Article 17, paragraph 2.
The reply requested from the Court remains essentially a question of
interpretation and, therefore, of legal exegesis.
What did Article 17, paragraph 2, of the Charter intend to mean when it laid
down that the expenses of the Organization shall be borne by its Members ?
This paragraph certainly did not intend to make any innovation in the
matter, but rather to lay down a rule common to almost all types of
international organization. It would be difficult to find any international
organization where all the members benefited and only some of them bore the
expenses. The Article has a general bearing which does not seem to
discriminate between different types of expenditure, and the saying ubi lex
non distinguit, nec nos distinguere debemus would in any case be applicable
to it. But the least expert mind is inclined to understand that only normal
expenses are meant, that is to say those that are indispensable in any
organization—in other words, the administrative expenses which are those
that could not be dispensed with without the organization disappearing. For,
if it were not so, and if all the Member States of the United Nations were
obliged to bear burdens over and above the responsibility to which they had
committed themselves, then the financial power of the Organization would be
substituted for the national powers of each of its Members. It is
established that the United Nations is not a super-State, as the Court
affirmed in its Advisory Opinion on the reparation for injuries suffered in
the service of the United Nations (see I.C.J. Reports 1949, p. 179). The
Organization is an association of States with a view to the achievement of
certain common purposes, and of which the constitutive instrument recognizes
the sovereign equality. All other expenditure, such as that deriving from
the exercise of functions proper to each organ of the United Nations, has
its own particular regulations governing it, and does not appear to have
been con-[p 249]sidered in the request for an advisory opinion. This point
is particularly applicable to the circumstances under which the special
agreements mentioned in Article 43 of the Charter are drawn up.
In Article 23 the Charter provides for two categories of Members in the
composition of the Security Council: the permanent Members and the
non-permanent Members. The permanent Members have a seat on the Council ad
vitam societatis; the non-permanent Members act for the duration of their
mandate as though they were permanent Members, apart from the right of
veto. According to Article 24 of the Charter, the Security Council has the
"primary responsibility for the maintenance of international peace and
security". The responsibility is conferred by all the other Members on whose
behalf the Security Council acts and it supposes a mandate of honour which
cannot be renounced or revoked as far as the permanent Members are
concerned; it is at the very basis of the United Nations. Article 106 of
the Charter makes this point particularly clear: it lays on the parties to
the 1943 Four-Nation Declaration, and France, pending the coming into force
of the special agreements referred to in Article 43, the responsibility for
"such joint action on behalf of the Organization as may be necessary for the
purpose of maintaining international peace and security". This task is
incumbent, first of all, upon this limited group of States, next on the
Members of the Security Council and not on the other Members of the
Organization. The reference could not be clearer. But such a privilege would
seem also to have its counterpart. The exercise of the right to administer
world affairs goes together with the duty of furnishing the necessary means
for the accomplishment of that duty. It is therefore the obligation of the
Members of the Security Council to pay the expenses incurred by such
operations as those in the Middle East and the Congo.
Hence, a legal interpretation of the provision in question leads to the view
that the expenses referred to in Article 17, paragraph 2, of the Charter are
the current administrative expenses of the Organization, and not other
expenditure such as that resulting from the undertaking of operations by
military forces.
***
With regard to the request which is made for an advisory opinion from the
Court there are three solutions which the Court may consider. For the
circumstances in which the matter has been referred to the Court require a
prior decision as to its competence in the case. It cannot be denied that an
advisory opinion by the Court must be of utility to the United Nations. The
request in fact excludes from the opinion requested the question of the
validity of the basic resolutions in which the General Assembly decided to
undertake the operations in the Middle East and in the Congo, and [p 250]
that of the resolutions authorizing the relevant expenditures. That can
clearly constitute a serious obstacle to the fulfilment of its judicial task
by the Court. The Court might therefore deliver its opinion in a purely
formal fashion in view of the limited frame of reference of the request;
deliver an opinion on the substance while nonetheless analysing the validity
of the resolutions in question; or, again, might say that the circumstances
in which the request has been made prevent the Court from delivering the
opinion which is expected of it. This is a question of procedure which,
connected with the much more important problem of the Court's competence in
the matter, must be solved at the outset.
If the Court should deliver in a formal manner the Opinion requested, it
should, as it were, start from the idea that the expenditures in question
were validly authorized by the General Assembly. Their validity derived from
the vote of two thirds of the Members would dispense the Court from deciding
the question of the validity of the resolutions which were at the base of
the military operations. In that case the question would be a clearly
defined legal one. In its Advisory Opinion on the conditions of admission of
a State to membership in the United Nations the Court stated: "To determine
the meaning of a treaty provision—to determine, as in this case, the
character (exhaustive or otherwise) of the conditions for admission stated
therein—is a problem of interpretation and consequently a legal question"
(see I.C.J. Reports 1947-1948, p. 61). But this would be in any case a very
incomplete background for a judgment, owing to the absence of the legal
analysis required by the circumstances of the case. An opinion given under
these conditions would also be of a nature to distort the legal aspects of
the case. The Court would, despite itself, be making itself the intermediary
for an affirmative or a negative solution, which would however rest on a
hypothetical basis only. Its opinion would therefore be of but trifling help
to the United Nations in the fulfilment of its purposes. The Court's
prestige would suffer, and the Organization would derive no practical
benefit.
If the Court chose to deliver a reply of substance, it would have to
pronounce on both the intrinsic and formal validity of the resolutions
involved. That would amount to passing judgment on a politico-legal
phenomenon by virtue of which the General Assembly, having in view the
effectiveness of the pacifist system of the Charter, has in recent years
substituted itself for the function assigned to the Security Council.
Although Article 18 of the Charter lists the "important questions" which are
the subject of "decisions" of the General Assembly, such decisions, when
concerned with the question of the maintenance of international peace and
security, merely assume the form of "recommendations"; nor is there any
international organ which, by its decisions approving recommendations, can
alter their intrinsic character, which is non-obligatory. No type of action
other than enforcement action for the maintenance of international peace and
security, which is the exclusive prerogative [p 251] of the Security
Council, is provided for by the Charter as the function of any other organ.
The Court might perhaps in that case accord an extra-legal, if not legal,
character to the resolutions by which the General Assembly, faced with the
paralysis of the Security Council, took over the function which the Charter
allots to the latter body with a view to securing the primary purpose of the
Organization to maintain international peace and security. Such a process of
adaptation of the original provisions of the Charter to the new
circumstances of international life is in any case beyond the Court's scope
of interpretation of the Charter. It would assume the exercise by that
organ, by indirect means, of an activity de lege ferenda which is assigned
to it neither by the Charter nor by its Statute.
There thus remains for the Court only the third course as an adequate
solution; namely, to inform the General Assembly, as the organ of the United
Nations which has requested the opinion, that the Court is prevented from
delivering an opinion in view of the limitation imported into the request.
Such a procedure would be absolutely consistent and in accordance with the
right that the Court possesses, under Article 65 of its Statute, to accede
or not accede to a request made to it. It is unnecessary to recall the use
in this Article of the word may—"the Court may give an Advisory Opinion...".
Here, no injunction or order is laid down, as would have been the case if
the word must had been used. Furthermore this interpretation has been
confirmed by the Court in previous decisions. "The permissive provision of
Article 65 of the Statute"—the Court stated in its Advisory Opinion on
Reservations to the Genocide Convention—"recognizes that the Court has the
power to decide whether the circumstances of a particular case are such as
to lead the Court to decline to reply to the request for an opinion" (see
I.C.J. Reports 1951, p. 19). This interpretation was also applied in the
Advisory Opinion requested of the Permanent Court on the question of Eastern
Carelia, where the Court said: "It appears to the Court that there are other
cogent reasons which render it very inexpedient that the Court should
attempt to deal with the present question" (see P.C.I.J., Series B, No. 5,
p. 28).
In its Opinion on Judgments of the Administrative Tribunal of the I.L.O.
upon complaints made against UNESCO, the Court referred to the "compelling
reasons" which would cause the Court to decline to give an advisory opinion
requested within the framework of the indispensable collaboration with the
organs of the United Nations (see I.C.J Reports 1956, p. 86). The present
case, in my opinion, furnishes compelling reasons militating against the
possibility of its fulfilling with the necessary effectiveness and indeed
expediency the advisory function assigned to it.
***[p 252]
In conclusion, it will be appropriate to summarize the relevant points of
view as follows:
(1) The Charter of the United Nations gave the Organization the financial
independence required for the fulfilment of its purposes, but this does not
mean that all the Members are under the obligation to contribute to all the
expenses which may result;
(2) The question of the legal nature of the resolutions by which the General
Assembly and the Security Council undertook the operations in the Middle
East and in the Congo constitutes the decisive element in the present case;
(3) The budgetary procedures and practices of the organs of the United
Nations, which are of a technical and not of a legal character, do not on
that account prevent a clear separation being made between two categories of
expenses;
(4) The preparatory work of the San Francisco Conference does not indicate
in any precise fashion which of the Members of the United Nations are
required to contribute to the financing of specific operations, but they
enable the reply to the question raised to be inferred a contrario sensu;
(5) The exegesis of Article 17, paragraph 2, leads to giving to its words
the legal construction which seems to proceed from it, in the sense that the
expenses it refers to are the administrative expenses of the Organization
and not those expenses which, by their nature, are the exclusive
responsibility of the Members of the Security Council;
(6) The circumstances in which the question put to the Court in the request
for an advisory opinion is worded do not, in view of the resulting
limitation of its competence, permit the Court conscientiously to
accomplish its task in the present case.
(Signed) Lucio M. Moreno Quintana.
[p 253]
DISSENTING OPINION BY JUDGE KORETSKY
I regret that I cannot agree with the Opinion of the Court both (a) as I do
not consider that the Court would and should give an opinion on the given
question posed to it by the General Assembly of the United Nations, and (b)
as the Court, to my mind, did not come to the acceptable conclusion in
relation to the question which in substance is a question of financial
obligations of Member States in peace-keeping operations.
I. To give an Advisory Opinion on the question "do the expenditures
authorized in General Assembly resolutions [numbered in its request]
constitute 'expenses of the Organization' within the meaning of Article 17,
paragraph 2, of the Charter of the United Nations?" is impossible without an
appraisal, from the point of view of validity, "charterability", of the
named resolutions.
The French delegation proposed an amendment to the draft of the given
resolution: to include the words: (The expenses ... "decided on in
conformity with the Charter" (A/L 378)). The amendment was rejected. In this
connection the following question arises: is the Court to be precluded from
giving an advisory opinion without entering into the question of conformity
of the resolutions with the Charter? The Court's Opinion says "No" referring
to "the clear statements of sponsoring delegations that they took it for
granted the Court would consider the Charter as a whole". Generally
speaking, an interpretation of sponsors of a given resolution after it was
adopted does not always have a decisive significance. But even if we might
equate the phrase "that the Court may consider the Charter as a whole" to
"leaving it to the Court to examine whether the resolutions are in
conformity with the Charter", then may we consider that the situation is as
if the amendment was approved or—what is the same to say that the General
Assembly had no grounds to reject the amendment—as if by that expression (to
consider the Charter as a whole) the Court were invited to ignore the voting
of the Assembly on the French amendment. The phrase mentioned in the Opinion
was pronounced by one of the sponsors of the resolution in the Fifth
Committee before the French amendment was proposed. The amendment was
submitted later—in the plenary meeting of the Assembly. In the plenary
meeting (A/P.V. 1086) even sponsors spoke in a different way—that the
adoption of the amendment would "compel the Court to consider the validity
of a large number of resolutions adopted by the General Assembly itself",
that it "calls into question every resolution", that it "raises a political
issue, the legality of action taken by the General Assembly in
implementation of decisions of the Security Council". [p 254] So it was
apparently considered that the Court must, pro veritate habetur the
resolutions of the General Assembly, proceed on the presumption of their
validity, of a kind of "infallibility" of the General Assembly.
2. The General Assembly in its request for an advisory opinion put to the
Court the question connected with the resolutions already adopted and the
expenses already effected. Hence the Court, in answering the question, would
give, instead of answering the question in the form of principle, based on
an interpretation of the Charter, a quasi-judicial appraisal of the effected
expenses, some kind of judgment as if it had before it a concrete case about
effected expenses.
3. The question posed to the Court, in spite of its apparent narrowness,
involves more than an interpretation of only one Article and even of one
paragraph of that Article (Article 17 (2)). As was stated by the Mexican
delegate, the problem would not be regarded as basically a budgetary one;
there was, rather, a basic constitutional problem. Political issues
prevailed over juridical considerations. First and foremost we have there a
political question, the question of financial policy in peace-keeping
matters and, connected with it, a question of the powers and
responsibilities of the principal organs of the United Nations, the
political essence of which can hardly be denied. As the political aspect of
the question posed to the Court is the prevailing one, the Court, to my
mind, ought to avoid giving an answer to the question on the substance and
ought not to find unwillingly that its opinion may be used as an instrument
of political struggle. I think that there are "compelling reasons" for not
giving an answer on the substance of the request of the General Assembly as
"the circumstances of the case are of such a character as should lead it to
decline to answer the request" (I.C.J. Reports 1950, p. 72).
The Court embarked on a different course. I am obliged therefore to follow
the Court and examine also the substance of the posed question. I find it
necessary to examine the history of the resolutions numbered in the
request. In that way it is easier to come to the right conclusion.
4. The Opinion of the Court pays much attention to the description of the
functions of UNEF as set forth in the resolutions of the General Assembly.
It accepts the creation of the United Nations Emergency Force as something
that can be based on the Charter, strives to soften the military purpose of
this Force by denying the fact that it has been set up for "enforcement
action" [p 255]
and stating that it corresponds to the measures provided by Articles 11 and
14 of the Charter.
On this basis, the Court reaches the conclusion that the expenses for the
United Nations Force must be considered as those provided by Article 17 of
the Charter and allocated according to paragraph 2 of this Article.
The Court illustrates all this by the resolutions approved by the General
Assembly, quoting some paragraphs of these resolutions. The Opinion states
that the resolutions about the functions of UNEF have been approved without
a dissenting vote, and at the same time it states that the question of the
financing of UNEF presented perplexing problems in the debates of these
problems and that the resolutions reflected "the uncertainties and the
conflicting views about financing UNEF".
5. The Opinion did not consider it necessary to go into details about the
contradictions, statements and positions of the delegations, limiting
itself to quoting some paragraphs of the resolutions and paying much
attention to the quotations of the Secretary-General's statements and
reports.
This can be partly explained by the fact that in the General Assembly's
resolutions, as was the case with resolution 1001 (ES-I), the reference is
often made to that or those "guiding principles for the organization and
functioning of the United Nations Emergency Force as expounded in paragraphs
6 to 9 of the Secretary-General's report", to "the definition of the
functions of the Force as stated in paragraph 12 of the Secretary-General's
report" to "the basic rule concerning the financing of the Force laid down
in paragraph 15 of the Secretary-General's report" a.s.o. Thus the
recommendations on the measures to be taken have been made not by the Member
States but by the Secretary-General.
The mere formula of referring the expenses of the United Nations Force to
paragraph 2 of Article 17 originated in the Secretariat. The
Secretary-General, who "shall be the chief administrative officer of the
Organization" (Article 97), has proved to be an instrument directly
influencing United Nations policy.
6. It seems to me necessary to follow more critically the course of
development of the provisions of the General Assembly's resolutions,
considering them from an angle somewhat different from the Opinion of the
Court.
7. As has been done in the Opinion of the Court, one should naturally begin
with resolution 997 (ES-I) of 2 November 1956.
The General Assembly, stating there that foreign armed forces "have
penetrated deeply into Egyptian territory" and "are conducting military
operations against Egyptian territory", appealed to: [p 256]
1. "All parties now involved in hostilities in the area agree to an
immediate cease-fire and as part thereof, halt the movement of military
forces and arms into the area";
2. "the parties to the armistice agreements ... to observe scrupulously the
provisions of the armistice agreements";
3. recommended "that all Member States refrain from introducing military
goods in the area of hostilities...", and finally,
4. it has asked the Secretary-General "to observe and report promptly in
compliance with the present resolution to the Security Council and to the
General Assembly...".
In these resolutions, which in their nature are nothing else but
recommendations, one cannot yet see anything contradicting the Charter.
But in the Opinion of the Court the attention is drawn to the words in
paragraph 5 which state that the Secretary-General has been asked to report
to the General Assembly "for such further action as they may deem
appropriate in accordance with the Charter".
The Court's Opinion stresses the words "action as they may deem It tries to
make the word "action" especially important and justifies with this word the
creation of the United Nations Emergency Force.
Quite apart from the fact that by a UNO resolution approved even without a
dissenting vote one cannot change the Charter, still it 'should be pointed
out that in this very resolution the word "action" is subordinated to the
possibility of implementing it "in accordance with the Charter".
And in accordance with the Charter the General Assembly in the problems
relating to the maintenance of international peace and security may only
discuss and make recommendations. This recommendation in some cases may be
considered as an "action" in its common meaning, but it is not an "action"
within the meaning of Article 11 (2) of the Charter. The words "action" and
"recommendation" are not identical.
But the expression "to report to the Security Council and to the General
Assembly", while mentioning the word "action" expressed the wish of some
States, if not to put aside the Security Council in any case to make the
Security Council equal to the General Assembly regarding the function of
maintaining international peace and security.
8. The resolution 998 (ES-I) of 4 November 1956 has immediately revealed it.
It has violated the Charter, turned "a dangerous corner" in requesting the
Secretary-General to submit "a plan for the setting up ... of an emergency
international United Nations Force to secure and supervise the cessation of
hostilities in accordance with all the terms of the aforementioned
resolution" (997 (ES-I)). [p 257]
Here we can see two violations of the Charter:
1. The General Assembly has entrusted the Secretary-General to secure the
cessation of hostilities, i.e. entrusted him to take an action within the
meaning of the Charter. The Court in its Opinion assures that the verb
"secure" as applied here "might suggest measures of enforcement were it not
that the Force was to be set up with the consent of the nations concerned".
"The consent" means that they ought not to be forced to give such a consent.
But the United Nations Armed Force has to be ready to maintain (i.e. to
enforce) the preservation of conditions, to which the parties concerned gave
their consent.
2. The General Assembly has assumed a task of setting up the United Nations
Force. One should state that the Charter does not include such a notion as a
United Nations Armed Force. Even the Security Council itself is not
authorized to set it up. Article 45 binds the Members to hold immediately
available for urgent military measures national air force contingents for
combined international enforcement action. This Article refers to Article
43. Article 43 says that "All Members of the United Nations ... undertake to
make available to the Security Council, on its call and in accordance with a
special agreement or agreements, armed forces, assistance and
facilities...". Armed forces which would be available to the Security
Council would continue to be armed forces of the Members of the Organization
and not those of the Organization. They must be relatively compared with the
armies of some military alliance (coalition), which might act together or in
close co-ordination, but do not form an army separate from the national
armed forces. Article 42 of the Charter, mentioning action by air, sea and
land forces, which the Security Council may take "to maintain or restore
international peace and security" states that such action is being carried
out by air, sea or land forces of Members of the United Nations and not by
forces of the United Nations. Article 47 refers to "the employment and
command of forces", and to "the strategic direction of any armed forces
placed at the disposal of the Security Council".
9. Resolution 999 (ES-I), approved on the same day, authorized the
Secretary-General "immediately to arrange with the parties concerned for the
implementation of the cease-fire and the halting of the movement of military
forces and arms into the area". But in order "to obtain compliance of the
withdrawal of all forces behind the armistice line", it needed the force
which would be capable of [p 258] securing the fulfilment of this task. The
General Assembly suggested that the Secretary-General should apply for "the
assistance of the Chief of Staff and the members of the United Nations Truce
Supervision Organization".
10. And on that very day the Secretary-General, in compliance with
resolution 998 (ES-I), presented his report on the plan for an emergency
international United Nations Force (Doc. A/3289). In his report he considers
that "the General Assembly should decide immediately on the establishment of
a United Nations Command", declaring that he would try "to determine from
which countries the necessary troops might be drawn without delay, as well
as from which countries recruitment may be possible for a somewhat later
stage", and that "as a matter of principle, troops should not be drawn from
countries which are permanent members of the Security Council".
11. On the following day (i.e. 5 November 1956) the General Assembly, in its
resolution 1000 (ES-I), repeating almost word for word the main proposals of
the Secretary-General, established "a United Nations Command for an
Emergency International Force to secure and supervise the cessation of
hostilities...", and appointed the Chief of the Command, authorizing him to
undertake the recruitment of officers in consultation with the
Secretary-General.
12. One reads all that and wonders involuntarily whether Article 43 and
especially Article 47 ever existed, in compliance with which there has been
set up a Military Staff Committee "to advise and assist the Security Council
on all questions relating to the Security Council's military requirements
for the maintenance of international peace and security, the employment and
command of forces placed at its disposal...".
13. The Opinion uses quite a number of quotations from the
Secretary-General's report of 6 November 1956 (Doc. A/3302). In his report
the Secretary-General assured that the setting up of the Force must not be
considered "as part of an enforcement action directed against a
Member-country". "There is", he wrote, "an obvious difference between
establishing the Force in order to secure the cessation of hostilities, with
a withdrawal of forces, and establishing such a Force with a view to
enforcing a withdrawal of forces."
Was then the United Nations Force only an observers' corps? In the
Secretary-General's report it was stated that the United Nations Force is
"more than an observers' corps". If it is "more" than that, then it is not
simply "observers". And he acknowledged that the Force had military
functions, but he added that this Force must not exceed the limits necessary
to secure peaceful conditions. Such peaceful conditions might be secured by
the mere "presence" in a dangerous area of the armed forces sent there in
compliance with the Charter. But circumstances might compel the armed forces
to [p 259] undertake "enforcement action". The Secretary-General himself
acknowledged the fact that "the possibility that the Security Council could
use such a Force within the wider margins provided under Chapter VII of the
United Nations Charter" is not excluded.
Ergo, they were forces of compulsion, whether they were only "stationed"
there, i.e. "supervised", or were acting, i.e. undertook "actions".
14. On 7 November 1956 the General Assembly in resolution 1001 (ES-I)
continued on its "anti-Charter" way as recommended by the Secretary-General.
It approved "the guiding principles for the organization and functioning of
the Emergency international United Nations Force as expounded in paragraphs
6 to 9 of the Secretary-General's report", agreed with his definition of
the functions of the Force, authorized him "to issue all regulations and
instructions which may be essential to the effective functioning of the
Force", requested "the Chief of the Command, in consultation with the
Secretary-General as regards size and composition, to proceed forthwith with
the full organization of the Force".
All these provisions were directed to performing "actions", which did not
fall within the functions of the General Assembly. They cannot naturally be
substantiated by the Charter. But the General Assembly made no reference to
Articles of the Charter, as it is quite clear that Articles 11 and 12 of the
Charter bar the way to the aforementioned decisions of the General Assembly.
The Opinion invites reference to Article 14 of the Charter, considering that
"actions" undertaken in pursuance of decisions of the General Assembly might
be considered as "measures" recom-mended under Article 14. But Article 14
has nothing to do with the question under discussion. It provides for quite
different situations. If one considers that it involves "the maintenance of
international peace and security", as stated by the Court, then there would
be no need to include in the Charter before Article 14, Articles 11 and 12
which specially define the role of the General Assembly "in the maintenance
of international peace and security". Besides, Article 14 provides that "the
General Assembly may recommend measures for the peaceful adjustment of any
situation". What kind of measures are they supposed to be? One may refer to
Chapter VI and to Article 33 (1) in particular. The General Assembly may
only recommend measures in distinction to the Security Council which may—
as stated in that Article—"call upon the parties to settle their dispute by
such means". To whom may the General Assembly recommend measures? To the
Governments of the Member States [p 260] concerned. If they approve the
recommendations, then they have to carry them out. The General Assembly
cannot make recommendations to itself or to the United Nations staff. And
in this case the General Assembly not only recommended these measures but
brought and stationed the armed forces set up by it in the area where the
military invasion had taken place, i.e. in Egyptian territory.
To consider that the recommendation of measures for the peaceful adjustment,
referred to in Article 14, may be turned into the measures for securing "the
cease-fire, withdrawal of troops and other matters related to the military
operations in Egyptian territory" would have been, from a logical point of
view, a deviation from the Charter and its provisions.
15. Citing the resolutions mentioned in the preceding paragraphs, the
Opinion has deemed it necessary to mention several times that they were
adopted without a dissenting vote. But it did not mention that in the
statements of a number of delegations who considered it possible to abstain
from voting, as indicated in the written and oral statements (p. 112) as
well, the Delegation of the USSR made a statement in which it gave its
reasons in detail for the view that it
"regards the proposal for the establishment by the General Assembly of an
international force to be stationed on Egyptian territory, a proposal which
bypasses the Security Council, as contrary to the United Nations Charter.
However, in view of the fact that in this instance the victim of aggression
has been compelled to agree to the introduction of the international force,
in the hope that this may prevent any further extension of the aggression,
the Soviet delegation did not vote against the draft resolution, but
abstained."
This statement forces us to make another evaluation of abstention from
voting. But this will be a matter for later discussion.
16. Resolution 1001 (ES-I) of 7 November 1956 opened the epic struggle for
and against the anti-Charter methods of financing the so-called
peace-keeping operations.
The General Assembly in this resolution confined itself to provisionally
approving "the basic rule concerning the financing of the Force laid down in
paragraph 15 of the Secretary-General's report".
I do not intend to consider whether this form of resolution of the General
Assembly (which has been used in the three paragraphs of the resolution and
has usually been found objectionable under domestic legislation) was apt.
But it reveals the role played by the Secretariat in defining the methods of
financing the armed forces and operations.
Despite the aforementioned paragraph 15 of the Secretary-General's report
(Doc. A/3302), no final conclusion has yet been [p 261] reached on the
procedure of financing the Force. The Secretary-General wrote that "the
question of how the Force should be financed ... requires further study".
But still he considered that "A basic rule which, at least, could be applied
provisionally, would be that a nation providing a unit would be responsible
for all costs for equipment and salaries, while all other costs should be
financed outside the normal budget of the United Nations".
There has not yet been any direct or indirect reference to Article 17 of
the Charter.
In resolution 1122 (XI) of 26 November 1956 the General Assembly authorized
the Secretary-General "to establish a United Nations Emergency Force Special
Account to which funds received by the United Nations, outside the regular
budget ... shall be credited...", but at the same time it authorized him
"pending the receipt of funds for the Special Account, to advance from the
Working Capital Fund such sums as the Special Account may require to meet
any expenses chargeable to it".
This already constitutes a scarcely permissible utilization of the common
funds of the United Nations. The Working Capital Fund was set up in the
beginning in order to finance the provisional budget of 1946, pending
receipt of contributions. And later on its purpose was to meet regular
budgetary expenses, inasmuch as contributions were usually delayed. It was
not designed to meet un-budgeted expenditures. That was why the General
Assembly had no grounds for authorizing the Secretary-General to advance
sums from the Working Capital Fund for financing the United Nations
Emergency Force.
17. On 21 November the Secretary-General presented to the General Assembly
his new report (Doc. A/3383 and Rev. 1) in which he wrote that he "considers
it essential that the General Assembly decide at any early date on the
method of allocating to Member States the costs of the Force to be financed
by the United Nations" and recommended ("in order to assist the General
Assembly in considering this question") the approval of a resolution "that
the expenses of the Force be allocated to Member States on the basis of the
scale of assessments to be adopted for the United Nations budget for 1957".
At the meeting of the Fifth Committee on 3 December 1956 (A/C. 5/SR. 541)
the Controller, reporting on the above-mentioned proposal of the
Secretary-General, made by him with regard "to the views expressed
informally by a number of delegations", could not but mention that "from a
strictly budgetary and accounting viewpoint, the expenses of the Force
might be treated as distinct from the regular annual appropriation for
financing United Nations activities". But, he added, "they nevertheless
remained United Nations expenditures within the general scope and intent of
Arti-[p 262]cle 17 of the Charter".
Thus, Article 17 was brought into action for getting funds for operations
beyond the Charter.
The General Assembly in resolution 1089 (XI) of 21 December 1956 has
recorded that it took into consideration the recommendation made by the
Secretary-General "that the expenses relating to the Force should be
apportioned in the same manner as the expenses of the Organization", but it
could not fail to draw attention to the still growing controversies and to
the fact that "several divergent views, not yet reconciled, have been held
by various Member States on contributions or on the method suggested by the
Secretary-General for obtaining such contributions", and decided "that the
expenses of the United Nations Emergency Force, other than for such pay,
equipment, supplies and services as may be furnished without charge by
Governments of Member States, shall be borne by the United Nations and shall
be apportioned among the Member States, to the extent of $10 million, in
accordance with the scale of assessments adopted by the General Assembly for
contributions to the annual budget of the Organization for the financial
year 1957", and set up a Committee "to examine the question of the
apportionment of the expenses of the Force in excess of $10 million ...
including the principle or the formulation of scales of contributions
different from the scale of contributions by Member States to the ordinary
budget for 1957".
In this resolution there is no mention of Article 17. It did not equate, as
the Secretary-General proposed, an apportionment of the expenses relating to
the Force to an apportionment of the expenses of the Organization, but only
compared them, drew an analogy between them, using the expression "in
accordance with".
The General Assembly requested that the question of the apportionment of
the expenses of the Force should be further studied, directing the Committee
to look for an eventual principle and a formula of different scales of
apportionment. And in all these researches, hesitations and unreconciled
divergent views one could clearly distinguish the difference of principle
between budgetary expenses and the expenses for the armed forces which stood
beyond the limits of the budget and even of the Charter itself.
It should be stressed that the General Assembly did not exclude the
possibility of any "subsequent determinations as to responsibilities for
situations leading to the creation of the United Nations Emergency Force and
to ultimate determination as to claims established as a result of expenses
arising in connection therewith".
18. In resolution 1090 (XI) of 27 February 1957 the General Assembly again
returned to the question of financial arrangements [p 263] for the United
Nations Emergency Force. The allocated sums would be quickly exhausted.
The General Assembly assumed that "the expenses of the Force already
approved for 1957 represent a sizeable increase in assessments placed on
Member States, causing a grave unantici-pated financial burden for many
Governments", but it decided "to enter into commitments for the Force up to
a total of $16.5 million", appealed to Member States to make voluntary
contri-butions, permitted the borrowing of sums from the Working Capital
Fund and even from "other funds under the control of the Secretary-General"
(though the rightfulness of that is doubtful).
But still the General Assembly did not find the appropriate basis for the
financing of the Force.
19. The expenses for maintaining the United Nations Force continued to grow.
The terms of the stationing of the military contingents were prolonged. The
financial claims of Members contributing troops were also growing.
The General Assembly by resolution 1151 (XII) of 22 November 1957 once again
increased the supplementary allocations to $13.5 million, and even to $25
million.
The Secretary-General reported to the General Assembly (Doc. A/3694)' that
"a number of Member States have notified the Secretary-General that they
will not participate in the financing of the Force for reasons stated, when
the relevant decision was taken by the General Assembly. The percentage
assessments of the States involved amount to a total of approximately 20 per
cent."
The resolution passed over this statement and almost repeated the formula of
resolution 1089 (XI), which provided that the expenses shall be borne by
the Members of the United Nations in accordance with the scales of
assessments adopted by the General Assembly for the financial years 1957
and 1958 respectively.
20. On 27 August 1958 the Secretary-General presented a report to the
General Assembly in which he summarized the activity of the United Nations
Emergency Force and its financing position. He wrote that contributions had
been very badly assessed and that on 31 July 1958 only 41.1 per cent, of the
total amount assessed for 1958 had been received, and sixty-two Members had
made no payment of their 1958 UNEF assessment at that date and that "certain
Members have reiterated their intention not to participate in the financing
of the Force". All this (taking into consideration that regular budgetary
contributions have been made more or less normally) was a kind of protest,
whether direct or silent, against the adopted methods of financing.
The Secretary-General strove to achieve stand-by financial arrangements. He
considered that it should be established that the [p 264] costs for the
United Nations operations of the type in question, based on decisions of the
General Assembly or the Security Council, should be allocated in accordance
with the normal scale of contributions.
In reply, the General Assembly adopted resolution 1263 (XIII) of 14 November
1958 in which it limited itself to requesting the Fifth Committee "to
recommend such action as may be necessary to finance the continuing
operation of the United Nations Emergency Force".
21. By that time the three main positions on the question of the method of
financing the expenses of the Force (Doc. A/4072) had been crystallized:
(a) The costs of the Force should be borne by all Member States on the basis
of the regular scale of assessments, and Article 17 of the Charter should be
applied to them;
(b) the application of the regular scale of asesssments for the costs of the
Force was not equitable and therefore it was suggested, while sharing the
expenses of the Force, to take into consideration: (1) the special
responsibility for the maintenance of peace and security of the permanent
members of the Security Council (though by the usurping of the functions of
the Security Council by the General Assembly, this special responsibility of
the permanent members of the Security Council had been put aside together
with the Security Council itself), (2) the sub-stantial public and private
investments of certain States in the area;
(c) the expenses should be borne by those States whose action had
necessitated the creation of the Force.
At that time a great deal was said at the meetings of the Fifth Committee
(697th and 698th meetings) about the fact that the costs of the Force
related rather to Chapters VI and VII of the Charter, that it was impossible
to apply to those costs Article 17 which related to expenditures under the
regular United Nations budget, that UNEF had not to be financed in the same
way as the regular United Nations budget ("had that not been true,
expenditure on UNEF could have been included under Section 4 of the regular
budget estimates, relating to special missions and related activities"), and
that "financial commitments arising out of emergency action under the
Charter should be allocated by an entirely different system from that
provided for the Organization's regular expenses".
Thus were expressed the views of Member States on the question of meeting
the expenses for the Force in some way other than as budgetary expenses.
At the same time voices were raised against the conversion of the UNEF, as
an Emergency Force set up (though not by the appro-[p 265]priate organs)
for stopping the aggression against Egypt, into a permanent international
police force, "which had nothing in common with the principles of the
Charter".
22. In order somewhat to weaken the resistance of a number of delegations,
some Member States promised to make voluntary contributions "as special
assistance towards the 1959 UNEF expenses".
The General Assembly, in resolution 1337 (XIII) of 13 December 1958 (being
obviously under the influence of those promises) stated that the expenses
for the Force "shall be borne by the Members of the United Nations in
accordance with the scale of assessments adopted by the General Assembly for
the financial year 1959".
As can be seen, the General Assembly still did not consider it possible to
relate the allocated sum directly to the budget for the year 1959, and
suggested that this sum should be apportioned in accordance with the regular
scale.
Explaining why the allocated sum was not included in the budget, it seemed
appropriate to some to refer to the fact that "cost estimates could not ...
be developed with any precision"; but the sum of $19 million had been
determined. Attention is drawn to the increased number of countries which
abstained while voting this part of the resolution: out of 67 votes, 28
abstained. And even this procedure of financing was approved only for the
year 1959.
The General Assembly was compelled to look once again for new means of
solving the problem of financing the Force. At the suggestion of one of the
delegations, it decided to request the Secretary-General "to consult with
the Governments concerning the manner of financing UNEF in the future...".
23. The required consultation was carried out (see Doc. A/4176 and Add. 1
and 2). Out of 50 States who sent an answer, 23 States expressed the opinion
that the implementation of the regular scale of assessments should be used.
Some of them considered that the expenses of UNEF "should be borne by the
regular budget of the United Nations itself", that the Force should be
financed "under the regular budget of the United Nations", being against an
inde-pendent account. Six of the States supported the implementation of the
regular scale.
The General Assembly by its resolution 1441 (XIV) of 5 December 1959 did not
adopt the course of including the expenses for UNEF in the budget of the
Organization, and therefore it did not mention Article 17 of the Charter.
Having allocated some further $20 million it (a) decided to assess the
amount "against all Members of the United Nations on the basis of the
regular scale of assessments", and (b) striving to overcome the resistance
of a number of delega-tions, it resolved that voluntary contributions "shall
be applied as a credit to reduce by 50 per cent, the contributions of as
many [p 266] Governments of Member States as possible, commencing with
Governments assessed at the minimum percentage of 0.04 per cent....". This
peculiar form of influencing the vote produced its results, though they were
modest. As a result of this measure the number of those voting for this
resolution somewhat increased and the number of those abstaining slightly
decreased (this number, in comparison with the results of the voting on
resolution 1337 (XIII), was still rather substantial), though it did not
exert much influence on the actual contributions for the UNEF.
24. In December 1960 the General Assembly reconsidered the question of
financing UNEF. The problem of UNEF was, at that time, somewhat overshadowed
by the events in the Congo. At the sessions of the Fifth Committee it was
already stated that UNEF had lost its emergency character. The complaint was
made that there had not yet been any final decision with regard to the
methods of financing the Force.
There continued to be contradictory views as to who should bear the
financial burden of maintaining the Force and who should be released from
it. Each year considerable amounts were allocated, and with each year that
passed the arrears were increasing. Some of the States, protesting against
the anti-Charter creation of the UNEF, stated more than once that they would
not participate in its financing.
But not only those who abstained from the voting, but even some of those who
voted, have not paid. According to the data issued by the Secretariat (Doc.
Dossier 217) up to 31 December 1961, more than 30 States have not made their
payments to the UNEF special account for 1957, 1958 and 1959, and more than
40 States for the year 1960. The Advisory Committee on Administrative and
Budgetary Questions proposed a number of "possible alternatives" in order to
find a way out of the critical financial position of the United Nations; in
particular (a) to increase the Working Capital Fund; (b) to finance UNEF
from a section of the regular budget; (c) to establish a Peace and Security
Fund; etc.
But the General Assembly in its resolution 1575 (XV) of 20 December 1960
disregarded these suggestions, limiting itself to a repetition of the former
formula about the assessment of the allo-cated sum ($19 million) "against
all States Members of the United Nations on the basis of the regular scale
of assessments", indicating only one thing, i.e. for which States a
reduction of 50 per cent, should be provided at the expense of the voluntary
contributions.
25. A year passed. The General Assembly has been plunged in the operations
in the Congo, which it undertook itself despite the provisions of the
Charter, by-passing the Security Council. The [p 267] operation in the
Middle East seemed to be unnecessary. Attention was paid to the fact that
"there were fewer incidents in the area, and the threat of a renewed
conflict has been diminished". It was hoped that the Force might shortly
cease to function.
The General Assembly in resolution 1733 (XVI) of 20 December 1961 did not
give a radically new solution to the question of financing the UNEF. The
General Assembly partly used the formulae of resolution 1732 (XVI) approved
by it on the very day of the financing of the operations in the Congo. It
assigned funds for the operations in the Middle East for half a year only,
decided to continue the special account for the expenses of UNEF (and not to
include the expenses in the regular budget), apportioning the appropriated
sum among all States Members of the United Nations in accordance with the
regular scale of assessments for 1962, appealed to Member States to make
voluntary contributions, and went forward along the road of reducing the
assessment of a number of Member States (not only by 50 per cent., but even
by 80 per cent.).
26. The whole history of financing the United Nations operations in the
Middle East, mentioned above, shows that in no case could it have been
carried out according to the regular scale of assessments, as those
operations had an anti-Charter but at the same time a peace-keeping
character. It is known that the financing of peacekeeping operations is not
made within the regular budget. One should apply to Article 43 and not to
Article 17. And though the Secretary-General and some of the delegations
were forcing the General Assembly to refer to Article 17, the General
Assembly makes no direct reference in its resolutions to Article 17 (2) of
the Charter.
27. Coming to the operations in the Congo, the Opinion of the Court gives no
detailed analysis: neither of the Security Council's resolutions nor those
of the General Assembly. In its Opinion the Court limited itself to
objecting to the statements that the resolutions were implemented in
violation of the Charter, stressing that the actions of the
Secretary-General in implementing the resolution of 14 July 1960, and
consequently other resolutions of the Security Council, were confirmed,
approved and ratified by the Security Council and the General Assembly.
If one sought to find one's way through the paper jungle (according to the
expression used by Mr. Lowton, the British Judge), through the voluminous
documentation submitted (though it is not complete) to the Court by the
Secretariat on the instructions of the General Assembly as "likely to throw
light upon the question", then it would be possible to find quite a lot of
complaints that there [p 268] was a great divergence between what was
written down in the resolutions and their implementation.
And if, in regard to the operations in the Middle East, one could state that
they were implemented ultra vires, beyond the powers permitted to the
General Assembly by the Charter, then, regarding the operations in the
Congo, we may say that they were carried out ultra vires as well as ultra
terms of the mandates given to the Secretary-General.
It seems appropriate, though this has not been done in the Opinion of the
Court, to give a short account of the resolutions of the Security Council
and the General Assembly which were ap-proved in regard to the Congo.
Otherwise it would be impossible to evaluate the degree to which these
resolutions (including matters concerning financing) and their
implementation correspond to the provisions of the Charter.
The Court must not shut its eyes to reality. The image of Themis with her
eyes blindfolded is only an image from a fairy-tale and from mythology. The
Court, taking reality into consideration, should at the same time have in
mind the strict observation of the Charter.
I am prepared to stress the necessity of the strict observation and proper
interpretation of the provisions of the Charter, its rules, without limiting
itself by reference to the purposes of the Organization; otherwise one
would have to come to the long ago condemned formula: "The ends justify the
means".
28. Reports about the beginning of the tragic events in the Congo reached
the United Nations on 13 July 1960, when the Government of the
newly-organized State sent telegrams. The Congo Government asked the
Organization to provide military aid in order "to protect national territory
against acts of aggression committed by Belgian metropolitan troops".
Chapter VII of the Charter ought to have been brought into action here. It
had to be determinating in choosing the methods for dealing with a threat to
the peace and the means for their implementation.
In the Security Council, during the discussion of the Congo Government's
request, reference was made to the necessity of halting the aggression
against the Congo, and the aggression to be condemned. But the Security
Council, in resolution S/4387 of 14 July 1960, called upon "the Government
of Belgium to withdraw its troops from the territory of the Republic of the
Congo" (this was the main point in the resolution) and decides "to authorize
the Secretary-General... to provide the Government [of the Republic of the
Congo] with such military assistance as may be necessary until, through the
efforts of the Congolese Government with the technical assistance of the
United Nations, the national security [p 269] forces may be able, in the
opinion of the Government, to meet fully their tasks".
It was apparently supposed that the Belgian Government would answer the
appeal of the Security Council and would withdraw its troops from the Congo,
that some of the African States, who agreed to render military assistance,
would really lend it, that "the technical assistance in developing the
security administration" of the Congo, to which the Secretary-General
referred, would be carried out by the Secretariat. All this would hardly
have required any considerable funds. Therefore, the question of financing
had not yet been put forward at that period.
29. The situation in the Congo became more complicated with each day that
passed. The Belgian troops had not been withdrawn. The Secretary-General
brought there the armed forces, which he regarded as being "necessarily
under the exclusive command of the United Nations, vested in the
Secretary-General under the control of the Security Council". This whole
formula contradicts what is said in Article 43 (that the armed forces should
be made available to the Security Council on its call), in Articles 45 and
46 (which stipulate that the strength of national contingents and plans for
their combined action shall be determined by the Security Council). The
Military Staff Committee has been forgotten.
Attention is involuntarily drawn to the Secretary-General's report (Doc.
S/4389) in which it was said that "it is for the United Nations alone to
decide on the composition of military elements", instead of the clear
references made in the Charter to the effect that this right belongs to the
Security Council.
30. In its resolution (S/4405) of 22 July 1960, the Security Council once
more called upon "the Government of Belgium to withdraw its troops",
authorized "the Secretary-General to take all necessary action to this
effect", and requested "all States to refrain from any action which might
tend to impede the restoration of law and order and the exercise by the
Government of the Congo of its authority and also to refrain from any action
which might undermine the territorial integrity and the political
independence of the Republic of the Congo".
This corresponds to Article 39 of the Charter according to which the
Security Council, while determining "the existence of any threat to the
peace ... or act of aggression ... shall make recommendations, or decide
what measures should be taken...".
At that time in the Security Council it was pointed out that it was
necessary to ensure the withdrawl of Belgian troops without delay in order
to safeguard the territorial integrity of the Republic of the Congo, that
the restoration of law and order in the Congo should be effected by the
Central Government of the Republic of the Congo, and by no-one else, that,
thus, this resolution cannot be regarded [p 270] "as endowing the United
Nations with the right to interfere in the domestic affairs of a State and
to assume responsibility for a country's domestic laws and regulations"
(S/P.V./879, paras. 116, 120, 121).
31. Before long (8-9 August 1960) the Security Council had to turn back to
the Congo, where the situation became more and more complicated. The Belgian
troops had not been withdrawn, especially from the province of Katanga. Some
of the delegations had reason to suppose that there existed some forces who
were striving to dismember the Congo. Another tendency—to prevent the
resolutions of the Security Council from their proper realization—was
marked as well. The question, put by a delegate of one of the African
States: How the position taken by the Security Council was carried out—has
become the main question in evaluating the Security Council's resolutions.
It was said that the United Nations armed forces were slow in entering
Katanga despite the request of the Central Government of the Congo.
Moreover, instead of ensuring the withdrawal of Belgian troops from the
Congo, as stated in the telegram of the Government of the Congo, "the
United Nations troops are disarming our (Congolese) soldiers and allowing
Belgian forces to keep their arms which is incomprehensible". Some of the
African States raised protests. In the Security Council statements were made
demanding that an end be put to Belgian intervention in the domestic affairs
of the Congo (disintegration of Katanga from the Congo), and that the
legitimate rights of the Government of the Congo be restored.
And for the third time the Security Council, in its resolution of 9 August
1960 (Doc. S/4426), called upon the Government of Belgium to withdraw
immediately its troops from the province of Katanga, reaffirmed "that the
United Nations force in the Congo will not be a party to or in any way
intervene in or be used to influence the outcome of any internal conflict,
constitutional or otherwise" and called upon "all Member States, in
accordance with Articles 25 and 49 of the Charter of the United Nations, to
accept and carry out the decisions of the Security Council and to afford
mutual assistance in carrying out measures decided upon by the Council". The
last call directed to Member States was apparently caused by the obstacles
put in the way of implementing the Security Council's resolutions.
The references made to Articles 25 and 49 of the Charter reaffirmed that
the Council's appeals were nothing else but decisions binding on all Members
of the United Nations. Besides, these references refute any suggestion that
Chapter VII of the Charter has nothing to do with the operations of the
United Nations Force in the Congo. But I have to discuss this matter a
little later.
The resolution of 9 August requested the Secretary-General to implement it,
but it did not give him a blanket mandate; it dealt [p 271] with a
relatively small area of action which he had to organize naturally according
to the procedure provided by the Charter. This was stressed in the
explanations of votes and in the statements made at the following sessions
of the Security Council. In this respect it should be noted that the
estimates of the results of the voting on the basis of purely arithmetical
counting without taking into consideration the real position of Member
States, can hardly be regarded as right.
Thus the USSR delegation explained that, despite some shortcomings of the
resolution, it voted in favour of the text because it enabled the Security
Council to carry out its most important task, namely to ensure that Belgium
would immediately and unconditionally withdraw all its troops from the
entire territory of the Republic of the Congo, including the province of
Katanga (S/P.V. 886, para. 283).
32. In September 1960 the Security Council had to concern itself with a more
detailed consideration of the methods of implementation of its preceding
resolutions. The Belgian troops were still stationed on the Congolese
territory. The separatist elements with the support from outside had in fact
separated Katanga from the Congo. Some of the African States paid attention
to the serious errors in the implementation of the Security Council's
resolutions, to the erroneous orders issued by the Command. The Prime
Minister of the Republic of the Congo protested against the interference of
the Secretariat in the internal affairs of the Congolese nation. There were
even some statements about the attempts to overthrow the existing
Government. It was clear that some of the States tried to rectify the
errors. But the draft resolution which was introduced to the Security
Council did not satisfy some Members of the Council, and therefore it was
not approved.
33. The Court may not go into the dramatic troubles into which the Republic
of the Congo was plunged. But it cannot avoid the fact that immediately
after this draft resolution had been voted down by the Security Council
there was called an emergency Special Session of the General Assembly (on
the date of the opening of its regular session) at which the above-mentioned
draft of the resolution was approved, with some amendments.
We shall not dwell at present on the concrete content of this resolution.
Though it did not suggest any measures for eliminating the errors to which
the delegations paid their attention in the Security Council, and at the
Extraordinary Session as well, it repeated the formulae discussed in the
Security Council, the style of its resolutions, preserving even the
references to Articles 25 and 49 of the Charter concerning the Security
Council, and thus led itself to the denial of its powers to consider this
question. Its statement that it "fully supports the resolutions of 14 and
22 July and [p 272] of 9 August 1960" may be considered as nothing else but
a moral support of the Security Council's resolutions. It would hardly be
possible to reach a conclusion that we have here an example of some kind of
collaboration between the two main bodies of the United Nations Organization
in maintaining and restoring international peace and security.
People say that you cannot have two coachmen in the driver's seat. In the
cause of the struggle for international peace and security, in the question
of their maintenance or restoration, in questions of "action with respect to
threats to the peace, breaches of the peace, and acts of aggression", the
organizational confusion would only have been harmful. Therefore the Charter
clearly enough delimits the functions of the Security Council and those of
the General Assembly.
To place the Security Council, as the Opinion does, beside the General
Assembly, considering them as interchangeable in solving and implementing
the tasks of maintaining international peace and security, would be
objectively to replace the Security Council by the General Assembly, to put
the Council aside and thereby undermine the very foundations of the
Organization. It does not befit the Court to follow this line. It has been
said that you cannot leave one word out of a song. The Charter represents
one of the most important international multilateral treaties, from which
it is impossible to leave out any of its provisions either directly or
through an interpretation that is more artificial than skilful.
The Court's Opinion thus limits the powers of the Security Council and
enlarges the sphere of the General Assembly. The Opinion achieves this by
(a) converting the recommendations that the General Assembly may make into
some kind of "action", and (b) reducing this action, for which the Security
Council has the authority, to "enforcement or coercive action", particularly
against aggression.
34. In order to prove that the General Assembly, in the matter of
maintaining international peace and security, may not only discuss and make
recommendations but take measures and carry out "actions" as well, the
Opinion examines Articles 10, n, 12, 14, 18 and 35 of the Charter.
The Opinion quotes Article 18 in order to show that the Assembly may take
decisions. This has never been denied by anyone. But the questions mentioned
in Article 18 have nothing in common with the question of maintaining
international peace and security. The General Assembly may only discuss the
latter and make recommendations.
Article 14 of the Charter, which the Opinion apparently considers to be
specially important for purposes of transforming a "recom-[p273]mendation"
into an "action" provides that "the General Assembly may recommend measures
for the peaceful adjustment of any situation...". "To recommend measures"
does not mean "to take measures". The General Assembly in fact may recommend
measures but, as has already been pointed out, it is not the General
Assembly that takes these measures but those to whom the recommendations are
addressed. Article 11 of the Charter makes it clear to whom the
recommendations relating to the maintenance of international peace and
security may be addressed. That Article provides that the General Assembly
"may make recommendations with regard to such principles to the Members or
to the Security Council or to both". Article 10 also provides (apart from
the reference to the natural powers of the Assembly to discuss any question
of any matters within the scope of the Charter) that "The General Assembly
... except as provided in Article 12, may make recommendations to the
Members of the United Nations or to the Security Council or to both on any
such questions or matters".
The Opinion of the Court supposes that Article n (2) may be interpreted in
such a way that it appears that the General Assembly "could make
recommendations only of a general character affecting peace and security in
the abstract, and not in relation to specific cases".
I do not consider it proper to make such an interpretation. Article 35, for
example, has in view a "special case"; Article n refers to "recommendations
with regard to any ... 'questions'". The recom-mendations may be, and it is
even desirable that they should be, concrete. But the point is that the
General Assembly may make only recommendations in regard to any questions
relating to the maintenance of international peace and security except as
provided in Article 12. It may, for example, recommend a cease-fire; but it
cannot set up the United Nations Force and decide to bring it into an area
of military conflicts in order to provide the implementation of the
cease-fire. Article 35 of the Charter deals with the proceedings of the
General Assembly in respect of matters brought to its attention concerning
any dispute, or any situation which might lead to international friction.
But this Article makes a direct reference to Articles 11 and 12, and adds
nothing new to our question.
To reach the conclusion, on the basis of the aforementioned Articles, that
the Assembly may "organize peace-keeping operations" would, from a logical
point of view, mean, to say the least, an anti-Charter encroachment upon the
sphere of powers of another organ; while "to organize peace-keeping
operations" means no more than "to perform peace-keeping actions". [p 274]
35. The Opinion curtails the functions of the Security Council,' reducing
them, in the question of maintaining international peace and security, to
the implementation of enforcement or coercive action. In this connection,
the Opinion indicates that the Security Council, as provided in Article 24,
has merely the primary but not the exclusive responsibility.
The word "primary" is not used in Article 24 in the sense of an ordinal
number (i.e. first, second, etc.), but, one may say, in the hierarchical
sense. The French text reads: "la responsabilité principóle", the Spanish
text: "la responsabilidad primordial", and the Russian text: "glavnuju
otvjetstvjennostj" (which literally translated means "chief", "main"
responsibility).
Of course no single organ of the United Nations has the monopoly in the
matter of the maintenance of international peace and security, which is one
of the main purposes of the United Nations. But the Organization is a
complicated and intricate piece of "international machinery" in which each
of the organs, as separate parts, has a specific sphere of operation as
provided in the plan, and with regard to the Organization, as provided in
its Charter.
Despite all efforts to the contrary, under the Charter only the Security
Council may take an action with regard to a question relating to the
maintenance of international peace and security. Such is the meaning of
Article 11 (2). It reads: "Any such question on which action is necessary
shall be referred to the Security Council by the General Assembly either
before or after discussion."
36. According to the Opinion the action which the Security Council should
take is enforcement or coercive action. It is worth mentioning incidentally
that the Security Council may not only take "action" but also make
recommendations although they are not "action" as that word is used in the
Charter.
But it may be agreed that the Security Council's decisions have a coercitive
or (that is almost the same) enforcement character. (This is borne out by
Article 25 and by the whole of Chapter VII itself; mention may also be made
of Article 94 (2) of the Charter.) But the main point in the arguments
apparently lies not in this, but in the statement that the Security Council
is competent to implement enforcement action directed against any of the
States "if for example [to use the words of the Opinion] it [the Security
Council] issues an order or command to an aggressor under Chapter VII". What
is the basis for such an interpretation? If we turn to the first Article of
Chapter VII, i.e. to Article 39, we are unable to find there any direct
reference to the fact that the measures which, as decided by the Security
Council, "shall be taken ... to maintain or restore international peace and
security" should be directed against any of the States. But then the
question arises: What prompted the above-mentioned interpretation? It is
hardly worth reasoning in [p 275] the abstract, and losing contact with the
real situation that gave rise to the request for an Advisory Opinion and to
the above-mentioned interpretation. The matter concerned the procedure for
financing operations in the Congo. A number of Member States insisted that
the question concerning the financing of these operations should be decided
by the Security Council in accordance with Article 43 of the Charter.
The course of reasoning followed by the opponents of such a position may be
outlined as follows: the implementation of Article 43 of the Charter might
have been necessary, had the aforementioned operations been carried out in
compliance with the procedure provided by Chapter VII of the Charter;
Chapter VII allegedly provides for enforcement action against any of the
States. The operations in the Middle East and in the Congo are allegedly
not directed against any of the States. Ergo, the provisions of Article 43
of the Charter cannot be applied to them.
This is motivated in the statements of some delegations and in the
Secretary-General's reports. In one of his latest statements (A/C.5/864),
the Secretary-General, summarizing the statements of some delegations,
spoke of the inapplicability of Article 43 of the Charter inasmuch as the
Security Council's resolutions regarding the Congo could be considered as
implicitly taken under Article 40, but certainly did not involve the type of
coercitive action directed against Governments envisaged by the enforcement
measures of Articles 41 and 42.
This provision has apparently been suggested to their chief by his legal
advisers, who had in mind what had been said in literature or what they
themselves had published; they did not, however, take into consideration the
fact that Article 40 is closely connected with Articles 41 and 42 of the
Charter through Article 39. The situation in the Congo was by no means a
simple one and all efforts were devoted to preventing an aggravation of the
situation. It was not simply a question of "call[ing] upon the parties
concerned to comply with such provisional measures as it deems necessary or
desirable".
37. Long before that date, the Security Council had had to take "account of
failure to comply with such provisional measures" as provided in its
resolutions from July 1960 onwards. And it in-evitably had to turn its
attention to the other Articles of Chapter VII.
Moreover, the Security Council should, from the very beginning, have acted
in compliance with Article 39 of the Charter.
As already noted, the Government of the Republic of the Congo, applying for
assistance on 13 July 1960, pointed out that "the purpose of the aid
requested is not to restore the international situation in the Congo but
rather to protect the national territory against acts of aggression". [p
276]
If the Security Council in its resolutions did not call the activity of the
Belgian troops an aggression, then this was only for tactical reasons. "We
have refrained", said the representative of Tunis (speaking in support of
the draft resolution submitted by Ceylon and Tunis) "... from using the word
'aggression' or even the term 'aggressive acts' in resolutions, since we are
most anxious not to exacerbate the feelings of the Belgian people..." But
this cannot change the essence of the matter.
The Secretary-General was authorized to take all necessary action and to use
force, if necessary, in the last resort. Military contingents were sent. The
so-called United Nations Force in the Congo had grown up into an army
numbering many thousands. To maintain this army and its operations, millions
of dollars have been spent.
The United Nations Force was sent there, not to persuade or to parade, but
to carry out military operations. And they did so. If we direct our
attention to the last events connected with the blockading of the roads
leading to Elizabethville, then we may say that such a blockade can be
easily related to the measures provided by Article 41 of the Charter. Thus
the whole chain of logical considerations, designed to justify the deviation
from Article 43, may be easily torn to pieces on contact with reality.
For less than half a year more than $60 million were spent for the
operations in the Congo. This greatly exceeded the expenses for UNEF and
even the regular expenses for the United Nations itself.
The amount of the expenses, the character of the operations, the
contradictions in the evaluation of the character of the United Nations
Organization's activity in the Congo, the methods of implementing the
approved resolutions have influenced the contradictory views put forward
during the debates on the methods of financing the above-mentioned
operations.
There could not have been the same common approach to the methods of
financing which characterized budget appropriations.
The report of the Fifth Committee of 19 December 1960 (A/4676), which summed
up the methods of financing the operations in the Congo, as proposed by the
delegations, has indicated six different methods:
"(a) The expenses should be included in the regular budget and apportioned
among the Member States in accordance with the 1960 scale of assessments for
Members' contributions;
(b) The expenses should be entered in a special account and apportioned
among the Member States in accordance with the 1960 scale of assessments for
Members' contributions to the regular budget; voluntary contributions should
be applied, at the request of the Member State concerned, to reduce the
assessments of Members with the least capacity to pay; [p 277]
(c) The expenses should be met under special agreements concluded in
accordance with Article 43 of the Charter; between the Security Council and
the countries providing troops;
(d) The expenses should be borne in larger part by the permanent members of
the Security Council, as having a major responsibility for the maintenance
of peace and security;
(e) The expenses should be borne in larger part by the former administering
Power;
(f) The expenses should be financed entirely out of voluntary
contributions."
Having regard to the approach of different groups of States to the methods
of financing the operations in the Congo, the only way to reach a proper
decision should be strict compliance with the Charter, of which Article 43
was to be regarded as decisive.
38. But the General Assembly in resolution 1583 (XV) of 20 December 1960 has
followed another course. It accepted that "the expenses involved in the
United Nations operations in the Congo for 1960 constitute 'expenses of the
Organization' within the meaning of Article 17, paragraph 2, of the Charter
of the United Nations and that assessment thereof against Member States
creates binding legal obligations on such States to pay their assessed
shares".
One need not for the present embark upon a critical analysis of these
"preambular recitals" inasmuch as this whole resolution soon ceased to be
mentioned (and this was not by chance) in the list of those resolutions
which were recalled in subsequent resolutions (as is the tradition of the
Organization).
It is however important to note that the Assembly did not dare to include in
the regular budget the expenses of the Congo operations as advocated by some
of the delegations. The delegate of the USA, whose Government had made a
voluntary contribution, stated:
"The voluntary contribution was offered on the assumption that the costs for
1960 would be incorporated in the regular budget of the United Nations for
that year. The United States wished to ensure that no-one would be tempted
to argue in the future as some had argued without foundation in the past,
that there was no legal obligation to pay assessments for expenditure which
was not incorporated in a section of the regular budget." (A/C.5/SR.803,
para. 36.)
But the Assembly decided to establish only an ad hoc account (not even a
special account) for the expenses of the United Nations in the Congo. And
the voluntary contribution, which was made with a purpose in view was used,
as in the case of resolution 1575 (XV) for UNEF, to provide a reduction of
up to 50 per cent, in the [p 278] contributions of those Governments with a
limited capacity to pay. But some reference has already been made to the
true meaning of such a reduction and I must revert to this point. It is
impossible not to mention the fact that slightly more than a half, i.e. 46
out of 87, voted in favour of this resolution.
But when on the same day resolution 1590 (XV) appropriating $24 million for
the operations in the Congo for the period from 1 January to 31 March 1961
was put to the vote, less than half of the delegations, i.e. 39 out of 97
(44 delegations abstained) voted for it. This sounds stronger than adoption
without a dissenting vote.
39. In February 1961 tragic events occurred. The Congolese national leaders,
M. Lumumba and others, were killed. The Belgian troops were still not called
back. The Security Council, having come to the conclusion that an immediate
and impartial investigation should be carried out in order to ascertain the
circumstances of the death of M. Lumumba and his colleagues and that the
perpetrators of these crimes should be punished, approved a resolution on
21 February 1961 in which it urged "that the United Nations take immediately
all appropriate measures to prevent the occurrence of civil war in the
Congo, including arrangements for ceasefires, the halting of all military
operations, the prevention of clashes, and the use of force, if necessary,
in the last resort"; and "that measures be taken for the immediate
withdrawal and evacuation from the Congo of all Belgian and other foreign
military and paramilitary personnel and political advisers not under the
United Nations Command, and mercenaries".
Inasmuch as the Opinion of the Court states that this resolution was also
approved without a dissenting vote, a fact which is regarded as constituting
approval of the Secretary-General's actions, I am obliged to quote the
statement made by the representative of the USSR in the Security Council
while this resolution was being voted on. He said that the delegation of the
Soviet Union decided not to prevent the adoption of this resolution despite
its weakness and shortcomings, as it still contained an objective
condemnation of the national leaders' murderers and a demand to take
measures for the immediate withdrawal and evacuation from the Congo of all
Belgian and other foreign military and para-military personnel and, also,
because the delegation was taking into consideration the wish of the African
and Asian countries.
But at the same time the representative of the USSR made an objection
against entrusting the Secretary-General with the implementation of the
suggested measures. [p 279]
Therefore, any kind of vote on the resolution (and especially abstention
from voting) does not mean that all the paragraphs of the resolution were
approved by all those who did not cast a dissenting vote. Such reservations
are often made, even while voting "for" a resolution.
40. Attention should be drawn to the increasing number of those who
abstained from voting on the resolutions on financing the operations in the
Congo. It sometimes happened that the number of those abstaining exceeded
the number of those voting "in favour". An evaluation from the political
point of view must be made but this also requires a reconsideration of the
importance of abstention from the procedural and juridical point of view.
Abstention from the vote on the resolutions cannot be made equal to the Old
Roman "non liquet". Another Old Roman rule could be recalled, i.e. if one
ought to say "yes", but keeps silent, then that means "no". But that would
be excessively logical. Abstention from the vote on the resolutions on these
or those measures proposed by the Organization should rather be considered
as an expression of unwillingness to participate in these measures (and
eventually in their financing as well) and as unwillingness to hamper the
implementation of these measures by those who voted "in favour" of them.
Such an interpretation is proved by the way in which payments for UNEF
operations, and especially for ONUC, are made by States whose delegations
abstained from voting.
According to the data available on 1 June 1962, more than 30 States, whose
delegations abstained from the vote cu financial resolutions for the Congo
operations, did not make their payments to meet the expenses of those
operations, though most of them had made such payments for the regular
budget. This was a peculiar voting by non-payment.
41. The operations in the Congo became more complicated and expensive
although the main tasks, which were set out in the resolutions of the
Security Council, had not been implemented.
Though the General Assembly deplored that "the Government of Belgium has not
yet complied with the resolutions and that such non-compliance has mainly
contributed to the further deterioration of the situation in the Congo" and
expressed once more the conviction "that the central factor in the present
grave situation in the Congo is the continued presence of Belgian and other
foreign military and para-military personnel and political advisers, and
mercenaries, in total disregard of repeated resolutions of the United
Nations", it decided that the above-mentioned contingents and personnel
"shall be completely withdrawn and evacuated" (reso-[p 280]lution 1599 (XV)
on 15 April 1961). At the same time, it complained of "the many difficulties
that have arisen in the way of effective functioning of the United Nations
operation in the Congo", con-sidered "it essential that necessary and
effective measures be taken by the Secretary-General immediately to prevent
the introduction of arms, military equipment and supplies into the Congo,
except in conformity with the resolutions of the United Nations" and urged
the release of all members of Parliament, all political leaders under
detention, and the convening of Parliament without delay. It called upon the
Congolese authorities to co-operate fully in the implementation of the
resolutions of the General Assembly, and although it decided to appoint a
Commission of Conciliation (resolution 1600 (XV) of the same date), it
nevertheless continued to appropriate millions of dollars "pending action"
by the General Assembly (resolution 1595 (XV) of 3 April 1961).
When the enormous sum of $100 million had to be appropriated for nine
months, the General Assembly was confronted with an acute problem of the
methods of apportionment of these expenses. The amount of the appropriations
itself (which was twice as large as the corresponding appropriations in the
regular budget) stressed the qualitative differences between the expenses of
the Congo operations and those for the normal (regular) budget. The General
Assembly's resolutions 1619 (XV) and 1620 (XV) of 21 February 1961 have
revealed it. I propose to return to this matter a little later.
It is important at this stage to state that resolution 1619 (XV) fixed the
results of the continuous struggle that has been going on in the Fifth
Committee and at the plenary meetings of the Assembly on the question of the
procedure and resources for financing peacekeeping operations.
The Assembly clearly acknowledged that "the extraordinary expenses for the
United Nations operations in the Congo are essentially different in nature
from the expenses of the Organization under the regular budget and that,
therefore, a procedure different from that applied in the case of the
regular budget is required for meeting these extraordinary expenses"; and
decided "to open an ad hoc account for the expenses of the United Nations
operations in the Congo for 1961" and to apportion as expenses of the
Organization the amount of $100 million among the Member States in
accordance with the scale of assessment for the regular budget. At the same
time, there was fixed for some of the States a reduction up to 80 per cent,
of the corresponding assessment. This, however, was considered as a
temporary measure. There was mentioned a year (1961) for which this sum was
appropriated and the sum itself ($100 million) that was to be apportioned.
Besides, it was stated that the aforementioned apportionment was effected
"pending the establishment of a different scale of assessment to defray the
[p 281] extraordinary expenses of the Organization resulting from these
operations".
In this last part of the phrase the Opinion finds confirmation of the fact
that in this case reference is made only to another scale of assessment and
not to some method other than assessment. But it is important to stress that
the resolution states that the expenses for operations in the Congo are
essentially different in nature from the expenses of the Organization under
the regular budget. Expenses of a different nature require different
procedures. The General Assembly did not consider this to be the only
procedure for defraying the extraordinary expenses of the Organization
resulting from these operations. In the same resolution the General Assembly
appealed to the permanent members of the Security Council and to the
Government of Belgium to make voluntary contributions.
Moreover the General Assembly did not choose any of the "generally
recognized procedures". In resolution 1620 (XV) approved on the same day,
the General Assembly decided to provide for the study of the following
points:
"(a) Methods for covering the cost of peace-keeping operations;
(b) The relationship between such methods and the existing administrative
and budgetary procedures of the Organization."
42. By the end of 1961 the resolutions of the Security Council on the Congo
were not yet implemented. Katanga was practically separated. The General
Assembly continued to appropriate ever new amounts for operations in the
Congo.
Resolution 1633 (XVI) of 30 October 1961 authorized the Secretariat to
incur commitments of $10 million per month. The divergencies about
financing these operations became more acute. I have already cited various,
and at times diametrically opposed, methods proposed for financing
operations in the Congo. The Working Group of Fifteen which was specially
appointed for the examination of the administrative and budgetary procedures
of the United Nations stated, on the result of its work, that its report had
been unable to indicate, because of the divergence of opinion among its
members, any precise principles for finding a solution to the problem of
financing peace-keeping operations undertaken by the United Nations
(A/4971). The number of votes not cast in support of the resolutions,
especially the number of abstentions, increased. The number of Member States
which "abstained" from payment for operations in the Congo, even from among
those who voted for the resolutions, also increased (though these Members,
as a rule, are not in arrears in their contributions under the regular
budget). According to the data on 1 June 1962, 49 Member States did not pay
for the operations of the Congo in 1960; still more for the operations in
1961. [p 282]
It was further stressed and became more evident that operations in the Congo
should be exclusively within the competence of the Security Council, as they
included such questions as the scope of the operations, the size and
disposition of the Force, its armament and equipment. The Security Council,
discussing the problems of the operations, had to determine in what way the
questions relating to the financial implications of the operation were to be
solved. Therefore, when the General Assembly at its session on 21 April
1961 failed (in one of the phases of the discussion) to come to a solution
of the question of financing the operations in the Congo, the delegation of
Ghana submitted a draft resolution in which it suggested that the question
of "cost estimates and financing of the United Nations operations in the
Congo be referred immediately to the Security Council for consideration".
The question, as we have seen, was solved without appealing to the Security
Council, but the suggestion made by the delegation of Ghana is very
significant. It had chosen the proper way of solving this problem.
Once more the Security Council had to deal with the question of the
operations in the Congo. Its resolution (S/5002) of November 1961 may be
said to sum up the provisions of all its previous resolutions.
Being a judge, I am not able to make an evaluation of this resolution. It
is essentially a political document.
I deem it necessary to direct my attention only to what is related to the
voting of this resolution, inasmuch as the Opinion attaches importance to
the absence of a dissenting vote.
The representative of the Soviet Union voted for the above-mentioned
resolution, but in his statement on the reasons for his vote he said that he
considered it possible to support the draft because it satisfied the main
task, i.e. it drew the attention of all the staff of the United Nations
Organization and the United Nations Force to the solving of the problem of
eliminating the source of foreign intervention in Katanga.
43. Generally speaking, after a study of all the Security Council's
resolutions with regard to the Congo (and this had to be done because it was
sometimes stated that the expenses of the operations in the Congo were those
of the Organization, inasmuch as these operations were carried out in
compliance with the Security Council's resolutions), it should be stated
that there was no necessary conformity between the concrete,
narrowly-specific resolutions of the Security Council and the arbitrary
carrying out of the operations (which in the main hardly corresponded to the
resolutions of the Council).
What is involved even more is the procedure of implementation of such
operations, which is completely at variance with the provisions of the
Charter. [p 283]
44. The General Assembly, by its resolution 1732 (XVI) of 21 December 1961
providing for the appropriation of some further $80 million for operations
in the Congo up to 1 July 1962, almost completely repeated its resolution
1619 (XV).
We can find there an acknowledgment of the fact that the expenses for
operations in the Congo are essentially different in nature from the
expenses of the Organization under the regular budget.
The Assembly preserved the ad hoc account for the expenses of the United
Nations operations in the Congo, and appealed for voluntary contributions
and reductions for a number of countries.
The studies of the "methods for covering the cost of peacekeeping
operations" initiated by the General Assembly did not lead to the finding of
any "generally recognized procedures". This was hindered, not by the Charter
and its provisions, but by the heterogeneous political considerations in the
aggravated political situation outside and within the United Nations
Organization.
45. The General Assembly, in its resolution 1731 (XVI), adopted on the same
day, decided to submit to the International Court of Justice for an advisory
opinion the question that has become the subject of the Opinion of the
Court.
The General Assembly declared that it considered it necessary to have legal
guidance as to obligations of Member States under the Charter in the matter
of financing the United Nations operations in the Congo and in the Middle
East, and, requiring from the Court such a legal guidance, it drew the
attention of the Court to the interpretation of Article 17, paragraph 2, of
the Charter.
I am not of the opinion that by interpreting this paragraph one would
resolve the political divergences that have arisen in the United Nations
Organization with regard to the operations in the Congo. The problem
submitted to the Court originated in, and is saturated with, political
considerations. It seems to me that the background of the resolutions which,
in the General Assembly's opinion, called for an advisory opinion, reveals
the merely political essence of the question submitted to the Court.
I have already said, and am ready to repeat, that the Court should have
"declined to answer the request". But the Court did not agree with this. It
pays much attention to the analysis of Article 17, paragraph 2.
46. I have to direct my attention to this analysis too, inasmuch as I cannot
agree with the statement of the Court that the expenditures in question
(which in their essence are nothing else but expenditures for peace-keeping
operations in the Middle East and the Congo) should be considered as
"expenses of the Organization [p 284] within the meaning of Article 17,
paragraph 2, of the Charter of the United Nations".
The General Assembly's request is to define "expenses of the Organization"
within the meaning of Article 17, paragraph 2.
It does not ask the Court to define "expenses of the Organization" in
general. Indeed this notion may include all expenditures made by the
Organization or on its behalf, irrespective of the sources from which it
derives them, for example, from different voluntary contributions.
The question submitted to the Court localizes this notion, connecting it
with Article 17 of the Charter. But Article 17 deals with the budget.
Therefore the question submitted to the Court should be regarded as the
question whether it is possible to consider the expenditures made in
compliance with the afore-mentioned resolutions as the expenses of the
Organization provided by its budget.
47. It is suggested that paragraph 2 is not obligatorily related to
paragraph 1 of Article 17, and that paragraph 2 has its own independent
meaning, that the apportionment of the expenses which the General Assembly
may make is connected with all the expenditures of the Organization,
irrespective of whether they were provided in the budget or not.
This however would contradict the position occupied by paragraph 2, and
what is sometimes called a "topographical" interpretation of the rules of
law. Both paragraphs—the first (on con-sidering and approving the budget)
and the second (on the apportionment of the expenses) are not only placed
in one Article but the second paragraph follows the first. And such an order
is not a coincidence. If we follow the course of discussion at the San
Francisco Conference of the Article which later became Article 17, then we
may easily see that in the preliminary draft the Article read: "the General
Assembly shall apportion the expenses among the Members of the
Organization...", and only then followed the matter of the consideration and
approval of the budget.
As a result of the discussion of this Article in the Co-ordination Committee
and at the plenary of the Conference, the above-mentioned paragraphs changed
places. It was as if the two principal approaches to budgetary policy were
placed in juxtaposition.
Here is what is decisive: either the possibility of collecting amounts (by
apportionment among the Members) for drawing up the budget or of meeting the
amount of expenses necessary for the Organization and then apportioning them
among the Members.
The preliminary draft Article appeared to reflect the first approach, and
its final form as approved, the second. Thus the question of apportionment
is closely connected with the budget and its appropriations. [p 285]
The budget of the Organization provides for all the expenses necessary for
its maintenance (in the narrow sense of this word). These are usually called
common expenses, running expenses, and the budget itself is called a regular
budget, budget proper, etc. What kind of expenses are these? In each of the
annual budgets of the United Nations, the expenses are enumerated. They are
ex-penses for the sessions of the General Assembly, the councils,
commissions and committees, for special conferences, investigations and
inquiries, for Headquarters, the European Office, Information Centres,
hospitality, advisory social welfare functions, etc. These expenses are
contrasted with the so-called operational expenses for the various kinds of
economic, social and technical assistance programmes. Determined by the
various interests of different countries they are usually financed through
voluntary contributions, in any case outside the regular budget. In the
document submitted by the Secretariat (Dossier No. 195) on the "Budgetary
and Financial Practice of the United Nations" there is a division into two
parts:
(1) Regular budget (General Fund and Working Capital Fund), and
(2) Trust Funds, Reserve Accounts and Special Accounts outside the regular
budget. The document enumerates thirteen such Special Accounts among which
it names: Special Account for UNEF and ad hoc Account for the United Nations
operations in the Congo.
Sometimes, in order not to mix the budgetary and non-budgetary
appropriations and expenses, a distinction was made with regard to the
administrative and operational budgets (if a given programme is so extensive
that it necessitates the elaboration of a special budget for it, but this
budget does not merge with the regular budget).
The Opinion of the Court, in comparing paragraphs 1 and 3 of Article 17,
denies the fact that the notions of "regular budget" and "administrative
budget" are identical, since paragraph 1 refers to the "budget" and
paragraph 3 to the "adminstrative budgets" of specialized agencies.
I am not of the opinion that paragraph 3 makes it at all possible to
distinguish the "regular" budget from the "administrative" one. Paragraph 3
rather helps, by singling out "financial and budgetary arrangements", to
distinguish budgetary from operational expenses, i.e. the expenses provided
by the programme outside the regular budget.
The specialized agencies (see Articles 57 and 63) conclude agreements
"defining the terms on which the agency concerned shall be brought into
relationship with the United Nations" FN1.
---------------------------------------------------------------------------------------------------------------------FN1
There is a special United Nations publication entitled: Agreements between
the United Nations and the Specialized Agencies.
---------------------------------------------------------------------------------------------------------------------
[p 286]
One of the purposes of these agreements is to avoid "the establishment and
operation of competitive or overlapping facilities and services", which must
inevitably lead to the co-ordination of the budgets.
In the Agreement with the International Refugee Organization of 18 November
1948 it is stated that this Agreement is concluded "with a view to
achieving, in so far as practicable, uniformity- in presentation of the
administrative budgets of the United Nations and of the specialized agencies
for the purpose of providing a basis for comparison of the several budgets".
But no other special administrative, separated from the regular budget of
the United Nations Organization, is known to the Charter. Apparently the
notions "administrative" and "regular" budget coincide.
In so far as I have managed to become acquainted with the budgets of the
specialized agencies, I could not find (except in one case) any such notion
of administrative budgets.
Thus the Unesco budget is familiar with the notion "regular budget" as
opposed to the "financing of activities by funds from sources outside the
Organization's budget".
The stressing of this difference in regard to Unesco and other specialized
agencies can be explained by the extended development of the programme
operations and services. Only in the above-mentioned agreement of the
International Refugee organization can one find any such notion of "an
administrative budget" (Article XV,
But this can be explained by the fact that along with the Specialized
Agency there also exists "the Office of the United Nations High Commissioner
for Refugees", which is being maintained within the budget of the United
Nations.
Therefore, the administrative expenditures of the Agency could only have
been implemented on a limited scale.
The Statute of the Office of the United Nations High Commissioner for
Refugees refers to administrative expenditures and not to the administrative
budget:
"The Office of the High Commissioner shall be financed under the budget of
the United Nations. Unless the General Assembly subsequently decides
otherwise, no expenditure, other than administrative expenditures relating
to the functioning of the Office of the High Commissioner, shall be borne on
the budget of the United Nations, and all other expenditures relating to the
activities of the High Commissioner shall be financed by voluntary
contributions."
General Assembly resolution 411 (V) of 7 December 1950 is entitled
"Administrative Budgets of the Specialized Agencies". But the text of this
resolution refers only to the budgets, stressing the expenditures of
technical assistance funds and other extra-budgetary funds. [p 287]
48. May I now return to the question of the expenses for the operations in
the Congo.
Even the fact that those expenses have never been included in the regular
budget proves that it is impossible to argue that these expenses might be
apportioned under Article 17, paragraph 2, of the Charter. It has been said
more than once that peace-keeping operations should be financed in another
way.
At the San Francisco. Conference the necessity was at any rate realized of
establishing a special procedure for assessment of eventual expenditures for
operations of this kind. It is the Security Council which has, first of all,
to decide about the financial implications of concrete peace-keeping
operations. Article 43 gave directives as to how to arrange financial
questions which might arise from these operations. Article 17 has nothing to
do with these questions unless the Security Council should ask that
necessary measures be taken by the General Assembly.
One cannot consider that decisions of the Security Council regarding the
participation of any Member State in concrete peacekeeping operations are
not obligatory for a given Member. Its obligation to participate in a
decided operation was based on Articles 25 and 48 of the Charter. Agreements
envisaged in Article 43 proceed from this general obligation. Article 43
says that all Members undertake to make available to the Security Council
on its call armed forces, etc. Agreements must (not may) specify the terms
of participation, the size of armed forces to be made available, the
character of assistance, etc., envisaging all the ensuing financial
consequences as well. The General Assembly may only recommend measures.
Expenses which might arise from such recommendations should not lead to an
obligatory apportionment of them among all Members of the United Nations.
That would mean to convert a non-mandatory recommendation of the General
Assembly into a mandatory decision; this would be to proceed against the
Charter, against logic and even against common sense.
This applies even more to resolutions adopted not in conformity with the
Charter. It is not within the power of the General Assembly "to cure" the
invalidity of its resolutions enumerated in the Request by approving the
financial provisions of these resolutions.
For the reasons given above I am of the opinion that a negative answer must
be given to the question put to the Court by the General Assembly.
(Signed) V. Koretsky.
[p 288]
DISSENTING OPINION OF JUDGE BUSTAMANTE
[Translation ]
I. I am among the Judges who held the view that the question of the
conformity or non-conformity with the Charter of the United Nations
resolutions concerning the Middle East and the Congo should be examined as
being a necessary means of appraisement in order to reply to the question
put by the General Assembly in its request for an advisory opinion. That is
why I consider it necessary to give an account of my line of reasoning in
this matter so as to explain my conditional reply to the request and to make
the true scope of that reply clear.
2. First of all, I should explain why I have thought that the Court should
give the General Assembly its opinion, in conformity with Article 65 of the
Statute.
It is true that a preliminary question was raised in this respect: namely
whether it was possible or not to reply to the request for an opinion, since
the text of the request relates exclusively to the characterization of
certain expenditures as "expenses of the Organization", implicitly excluding
any pronouncement on the part of the Court as regards the intrinsic and
formal legality of the resolutions by which those expenses were authorized.
But I think that the General Assembly's power to determine the limits of the
questions upon which it asks an opinion is not incompatible with the power
of the Court, as master of its own reasoning, to take into consideration all
the elements of appraisement which it thinks useful or necessary in order to
arrive at a definition of its standpoint on the question on which an
opinion is asked. These elements, having the character of reasons for the
Court's view, should not be included in the operative part of the Opinion.
This view is in accordance with the rule that the interpretation of one of
the clauses of a treaty should be carried out by considering that clause in
the light of all the other relevant provisions of the treaty, taken as a
whole. Any limitation whatever on this point would run counter to the
principle of judicial independence.
Furthermore, the fact that the Court has communicated the request for an
advisory opinion to all the Member States in conformity with Article 66 of
the Statute implies, in my opinion, an obliga-tion for the Court to consider
the points of view of those States which expressed objections to the
resolutions referred to in the request. On this point the dossier sent to
the Court by the Secretary-General of the United Nations contains abundant
documentation. The debates in the Fifth Committee and the General Assembly,
[p 289] and the report dated 10 November 1961 of the Working Group of
Fifteen on the Examination of the Administrative and Budgetary Procedures
of the United Nations (Document 57 of the dossier, Part I), reveal the very
serious differences of opinion which were expressed regarding various points
of interpretation of the Charter bearing on the Middle East and Congo
questions and on the expenditures involved. An examination of the problem
would be incomplete, and the Court's reply would risk being either fruitless
or devoid of any great utility, if these aspects of institutional reality
are not taken into account, and if no attempt is made to clear up precisely
those doubts and disagreements which led to the request for an advisory
opinion.
As I understand it, the case may be put in these terms: since the Charter is
the legal standard to which the acts of the United Nations must conform, it
follows that a study of the legality (conformity with the Charter) of the
resolutions cited in the request constitutes an indispensable factor in the
decision whether the expenditures referred to are, or are not, "expenses of
the Organization". In the Court's reply an attempt is made to remain
strictly within the limited terms in which the request for an opinion has
been worded; nevertheless, in the reasoning of the Opinion the question of
legality is discussed as an essential premiss. It cannot be supposed that
the General Assembly wished to limit the Court's freedom of judgment by
excluding absolutely from its own consideration the question of legality. In
my opinion, the General Assembly's intention was well stated by the
representative of the Government of the United States when, in his oral
statement before the Court, he said:
"... The Assembly ... did not mean to put to the Court a question which it
could not answer, or to place conditions upon the Court which would prevent
it from answering... From this it follows that, if the Court should differ
with the views advanced by the Governments of the United States, the United
Kingdom, Australia, Ireland and others, that the issues can properly be
limited so as to avoid passing upon the validity of the underlying
resolutions, then it is free to inquire into these broader questions." (Oral
Statements, p. 131, lines 1-4 and 26 ff.)
My conclusion, then, is that the Court can and should reply to the request
for an advisory opinion put to it by the General Assembly.
***
3. I have said that a prior examination of the legality of the respective
resolutions seems to me to be absolutely indispensable for ascertaining
whether the expenditures mentioned in the request are, or are not,
"expenses of the Organization".
Among the resolutions listed in the request, it should be mentioned that
some of them deal exclusively with the political aspects of the two problems
of the Middle East and the Congo, describing [p 290] events in order to
justify the armed action of the United Nations. These are the basic
resolutions. There are others which, on the strength of the basic
resolutions, authorize the commitment of the Organization's resources and
prescribe the method of financing the expenditure involved by the action
taken. These are the derived or subsidiary resolutions. The objections
raised by certain States relate to a number of resolutions in both groups.
The question of the legality or of the conformity with the Charter of the
resolutions examined covers the two aspects of formal legality (regularity
of form, quorum, votes, etc.) and the intrinsic or substantive legality. The
concurrence of the two factors determines the validity of the resolution.
***
As to the formal legality, the objections raised by certain States relate in
particular to the Security Council resolutions concerning the Middle East
and the Congo respectively. These two series of resolutions must therefore
be examined separately.
In the case of the Middle East, the intervention of the United Nations in
Egyptian territory was ordered at the end of October 1956, following an
appeal by the Egyptian Government.
During three consecutive meetings (Nos. 748 to 750), the Security Council
was not able to secure the unanimity of the permanent Members for adopting a
definite position as regards the invasion of Egypt; it therefore decided
(resolution of 31 October 1956) to convene the General Assembly in an
emergency special session— in conformity with resolution No. 377 A (V) of
1950—"in order to make appropriate recommendations". This was agreed to by 7
votes (including the United States, the Soviet Union and China) to 2 (France
and the United Kingdom) with 2 abstentions (Australia and Belgium).
In conformity with Article 27, paragraph 3, of the Charter, a permanent
Member which is a party to a dispute which may endanger the peace according
to Chapter VI shall abstain from voting. A fortiori, there must be such
abstention from voting if a permanent Member is already a party to an
existing conflict involving a breach of the peace (Chapter VII). In this
case, France and the United Kingdom were debarred from taking part in the
Council's vote, and were under an obligation to abstain. Compulsory
abstention is, naturally, the negation of the right to veto. In such a case,
the unanimity of the permanent Members refers only to those permanent
Members who are duly entitled to vote in the matter or not debarred; the
decisions being valid if taken by the legal majority of the votes, including
those of all the permanent Members who are not debarred. Hence, the
resolution of 31 October was, from a formal point of view, properly adopted.
[p 291]
The General Assembly dealt with the matter on the basis of this Council
resolution and, in its turn, passed resolutions Nos. 997 to 1001 and 1121,
inspired by the purpose of restoring peace. Since these resolutions were
adopted by more than two-thirds of the votes (Art. 18, para. 2), their
formal legality is beyond question.
***
The operations in the Congo began in July 1960. The Government of the new
Republic protested against the entry of Belgian troops on Congo territory,
appealing for the military help of the United Nations to obtain their
evacuation and also—according to information supplied by the
Secretary-General—to obtain assistance so as to restore public order, which
was disturbed by mutinies. The Security Council complied with this request
and adopted the resolutions of 14 July, 22 July, 9 August and 17 September
1960 and 21 February and 24 November 1961, in which various measures were
prescribed, according to the course of events, to deal with the
international and internal situation of the country.
As to the formal conditions in which the Security Council resolutions were
adopted, it should be said that the resolution of 17 September 1960,
against which one permanent Member (the Soviet Union) voted, concerned the
calling of an emergency special session of the General Assembly.
Nevertheless, at a later date, namely 21 February 1961, the Security Council
reaffirmed resolution No. 1474 (ES-IV) of 19 September 1960, adopted by the
General Assembly in the special session called by the Council. The
resolution of 17 September was thus indirectly confirmed.
The Security Council's resolution of 22 July 1960 was adopted unanimously.
None of the other resolutions involved any votes against, but only
abstentions. It is already well known that an un-written amendment to the
Charter has taken place in the practice of the Security Council, namely, to
the effect that the abstention of a permanent Member present at a meeting is
not assimilated to the exercise of the right to veto FN1, No doubt this type
of amendment may be legally repudiated in a given case by invoking the text
of the Charter (Art. 27, para. 3), since no permanent Member has undertaken
to apply it without reservations; but in the case of the Congo, of the
permanent Members abstaining, none asserted that its abstention was to be
regarded as a veto. On the contrary, on two occasions France (17 September
1960) and the Soviet Union (21 February 1961) stated that their attitude did
not mean taking up a position contrary to the resolution. Again, China and
the United Kingdom on three, occasions (resolutions of 22 July and [p 292]
9 August 1960 and 21 February 1961) obliterated, by subsequent favourable
votes, any traces of their original abstention of 14 July, although indeed
the United Kingdom did renew its abstention on 24 November 1961. The Soviet
Union voted for four resolutions and abstained with regard to that of 21
February 1961, considering it not strong enough, although useful up to a
certain point. The only country which maintained its abstentionist line was
France, except at the meeting of 22 July 1960, when she voted for.
The impression in law and conscience given by this vote is that the Security
Council's resolutions in the case of the Congo are not devoid of formal
legality, and that the resolutions of more recent dates in fact ratify the
earlier ones, by continuing the course of armed action.
With respect to the "basic" resolutions of the General Assembly, 1599 (XV),
1600 (XV) and 1601 (XV), all of them dated 15 April 1960, they deal with the
carrying out of the Security Council's resolutions within the scope of the
objectives laid down by the latter organ. This is also the case with the
first resolution 1474 (ES-IV) of the General Assembly, of which I have
already spoken and which was ratified by the Security Council. All these
Assembly resolutions were approved by two-thirds of the Members present and
voting, in conformity with Article 18, paragraph 2, of the Charter. The
formal aspect has thus been observed.
***
4. The chief objections made by certain States as regards the intrinsic or
substantive legality may be summed up as follows:
( a) The Charter—it is said—has been violated because in the case of the
Middle East it was not the Security Council but the General Assembly which
took the decision to undertake armed action, in contravention of Articles 39
to 43 of the Charter.
I have already explained how the Egyptian question was referred by the
Security Council to the General Assembly. Can the Security Council so
delegate or transfer its functions? Speaking in general terms, the reply is
clearly negative, because that would upset the "spheres of competence" which
the Charter has laid down for these two organs. But in this particular case
a really exceptional situation, and one not provided for in the Charter, had
arisen, by reason of the obvious incapacity of two permanent Members of the
Council. The Council evidently thought that it could not take action freely
with respect to or against the interested parties without provoking a
dangerous breach within the organ, making its intervention ineffective.
Faced with this problem, what the Council did, in my opinion, was not to
delegate its functions but to return to the Organization the mandate which
the latter had conferred upon it under Article 24 of the Charter. The
principal reassumes the [p 293] exercise of his powers when the agent
renounces his mandate or is prevented from exercising it. Thus, as a body
representative of all the Member States, the Assembly would be reassuming
the exercise of the competence and the responsibility conferred by them on
the Security Council under Article 24.
Thus the intervention of the General Assembly may be said to have begun and
continued by virtue of a case of force majeure, namely the impossibility
acknowledged by the Security Council of carrying out its responsibilities in
respect of a conflict to which two permanent Members were parties. If
account is taken of the fact that the Organization was then faced with this
dilemma: either passively to allow the occupation of Egypt to be
accomplished, or to adopt urgent measures to preserve peace and put an end
to hostilities, it would seem that the Assembly's active intervention may be
justified since the Organization was obliged to fulfil the principal
purposes of its existence under Article 1 of the Charter.
To sum up, I think that the United Nations intervention in the case of the
Middle East derives from resolutions which are intrinsically valid from the
point of view of the competence of the organ concerned. Although the
Security Council did not take part in the matter, there were quite
exceptional reasons which justified the General Assembly's intervention. The
latter was therefore competent to act. This holds for the period from 31
October to 24 November 1956, the date of the last basic resolution No. 1121
in the dossier. As from that date, the situation needs to be considered
from a new point of view. Since the United Kingdom and France agreed to
abandon their armed action against Egypt and to withdraw their forces, the
bar to their participation as permanent Members of the Security Council no
longer existed, and the Council therefore became once more the competent
organ to take decisions concerning the functioning of the Emergency Force
and the continuation of United Nations action in the Israel-Palestine
question. So far as I know, the Security Council did not intervene; perhaps
by virtue of the theory of the non-applicability of Article 43 of the
Charter and of the competence of the Assembly to act in respect of actions
not of an enforcement nature. But this question will be dealt with further
on.
(b) Another question closely related to the foregoing refers to the spheres
of competence of the Security Council and the General Assembly from the
point of view of action for the maintenance of peace. It is the Security
Council—it is said—which is the only organ having the right to take action
(Articles 24; 35, para. 3; and 39-43). The General Assembly is expressly
forbidden to take action (Article 11, para. 2, last part; and Article 35,
para. 3). In this respect the Assembly only has the power to discuss or make
recommendations (Articles 10; 11, para, 2; and 14) and to call the Security
Council's attention to situations which seem to be danger-[p 294]ous
(Article ii, para. 3). Nonetheless—it is alleged—in the case of the Middle
East it was the Assembly which took the responsibility for authorizing the
military action and, further, which created a special United Nations
Emergency Force to carry out the operation, although this step was not
expressly provided for in the Charter. In the case of the Congo, while it
was the Security Council which decided on military assistance under the
supervision of the Secretary-General, it was the General Assembly which
undertook the application of this measure regarding the support and
financing of ONUC, the latter being an auxiliary force not provided for in
the Charter.
With regard to these observations, an interpretation is required of the
sense in which the word "action" is used in the provisions of the Charter.
It may be mentioned that, in other fields, the General Assembly may take
certain clearly defined actions, for instance the admission of new Members
(Article 4), the suspension and expulsion of a Member (Articles 5 and 6),
the performance of functions with respect to the international trusteeship
system (Article 16) or the Economic and Social Council (Articles 18 and 86
ff.), and administrative and budgetary questions (Article 17).
It remains to be considered whether there are other examples of actions
which the Assembly might take, without violation of the Charter, in the
peace-keeping field.
In Article 11, paragraph 2, the Charter adds no adjective to the word
"action", no qualification indicating the specific character of the Security
Council's action. What then is the nature of the action which the Charter
entrusts to the Council as something within its exclusive competence, as
something prohibited for the Assembly under Article II, paragraph 2, and
Article 35, paragraph 3?
It may at once be said that the action allotted to the Council is not
exclusively military action. I base myself on the text of Article 35,
paragraph 3, which refers to the pacific settlement of disputes (Chapter VI
of the Charter). Here, no actual conflict has yet taken place, no factual
situation which calls for the use of armed force; it is so far only a matter
of disputes which in the future, possibly a distant future, might lead to a
threat to the peace. Nonetheless, in such cases, it is the Council and not
the Assembly (Article 35, para. 3) which is to take action, not indeed
military action, but good offices, mediation, invitation to arbitrate or
submit for international judicial settlement, etc., all of which are
strengthened by a certain moral compulsion (Article 33 et seq.).
If military action is not the only type of action within the power of the
Council, what then is the type of action which the Charter confers on the
Council and what are its distinguishing features? It would be possible to
attempt to elaborate a theoretical conception [p 295] which might enable the
General Assembly to embark on a course of action. The solution may perhaps
be found in Articles 1 (para. 1), 2 (paras. 2, 3,4, 5L 5,-6, 24 (paras. 1
and 2), 33, 36 (para. 3), 37, 39-44 and 48 of the Charter. All these
provisions imply on the part of Member States certain partial and
contractual renunciations in respect of the exercise of their own
sovereignty—which indeed is fully recognized by Article 2 tparas. 1 and
7)—in the interests of international co-operation and peace. Furthermore,
some of these articles imply on the part of States Members the a priori
recognition of the Organization's rights to exercise upon them its
comminatory authority to compel them to fulfil the obligations of the
Charter. This authority runs from moral pressure (Article 33, para. 2;
Article 36, para. 1; Article 37, para. 2), through economic and diplomatic
pressure (Article 41), to preventive armed intervention (Article 42) and
the use of force (Article 43). All this comprises enforcement action under
its two aspects of prevention or imperative admonition, and punishment. Such
is the gravely responsible function which the Charter has entrusted to the
Security Council, where the five Great Powers of the world have permanent
seats. Only in the case of Articles 5 and 6 (institutional punishment) is
the principle mitigated and does the Assembly take part, side by side with
the Council, in the punitive function.
Seeking to establish the difference between this power of action of the
Security Council and the powers of the General Assembly, I would say that
the latter are of a kind to respect always and under all circumstances the
limitations imposed by State sovereignty; and that is why the Assembly's
role is confined to discussions, petitions, recommendations and actions of
limited scope. But when a crisis in the matter of peace occurs, the
international community finds itself in an abnormal situation; and then, by
virtue of the contractual rules of the Charter, the sovereign interests of
particular States come below the more fundamental interests of the
community, and the Security Council has the power to resort to compulsion
and even to force so as to restore order.
This interpretation of the meaning of the action which the Charter mentions
as one of the attributes of the Security Council simplifies the solution of
problems affecting the maintenance of peace. The Council's action
presupposes the existence of a State which has committed an infringement,
and hence the possibility of an authoritative or comminatory decision by
the Council. There is in addition, in these serious cases, lack of
compliance on the part of the infringing State, and consequently enforcement
action against it, including the use of force. At this stage, the consent of
the State which is responsible is ignored, and the Council may act against
the will of that State.
If this interpretation can be accepted, it is easier to understand the
General Assembly's attitude in the case of the Middle East, as [p 296]
expressed and explained in the Secretary-General's reports FN1. No doubt, if
military assistance had been asked for by the Egyptian Government, if France
and the United Kingdom had agreed to abandon their policy of force, and if
Israel had stopped its invasion, then the action undertaken by the United
Nations would not, it is asserted, have involved real belligerence against a
State within the meaning of Article 43 of the Charter, but would—by mutual
agreement—have become action, other than enforcement action, of security
and supervision, taken in conformity with Article 14, with a view to
supervising the withdrawal of the troops and the re-establishment of the
armistice line. It is in this way that it has been sought to justify the
dispatch of the Emergency Force.
---------------------------------------------------------------------------------------------------------------------FN1
Document A/3267, 3 November 1956, p. 3; Document A/3287, 4 November, p. 11;
Document A/3289, 4 November, p. 15; all these documents are included in the
volume of annexes of the first Emergency Special Session, 749th and 750th
meetings of the Security Council, dated 30 October 1956—Dossier of the
United Nations Secretariat, Document No. 132.
---------------------------------------------------------------------------------------------------------------------
However, this distinction between enforcement action and armed action which
is not coercive but simply police or security action is perhaps too subtle
for the second of these to be assigned to the General Assembly. For that, a
specific addition to or an amendment of the Charter, made by the competent
organ of the United Nations, would perhaps be required. After all, this has
reference to a military mobilization action on foreign territory, which is
always liable to cause complications, which has in fact occurred on
occasion. It is only the consideration of this exceptional circumstance of
the Security Council's paralysis in the particular case of Egypt which makes
the matter clearer and lessens the doubts which I have referred to. In this
connection, reference has been made to the precedent of other similar
interventions by the General Assembly, which are said to have constituted a
reaffirmation of the scope of the Assembly's peace-keeping powers. Among
these interventions have been mentioned the establishment of a Special
Committee on the Balkans (October 1947), of the Commission for the
Unification of Korea (October 1950), and of the observation group in the
Lebanon (June 1958). It is for the Organization to appraise the pertinence
and the weight of these precedents.
In the case of the Congo, the military action was ordered by the Security
Council and not by the General Assembly. Hence no problem arises as to the
validity of the resolutions initiating the action. One may perhaps arise
with regard to its continuance in new and complex circumstances. The
presence of ONUC in the Congo having continued, financial resolutions by the
General Assembly followed one another indefinitely and gave rise to
objections on the part of certain States.
To sum up, it may be asserted that in the cases of the Middle East and the
Congo a definition by a competent authority of the United Nations is
indispensable of the nature of the action under [p 297] taken by UNEF and
ONUC (enforcement action or mere security policing); and also of the scope
of the obligations of States Members in respect of this type of armed
expedition—not provided for in the Charter—which are not imposed by the
Security Council under Article 43 of the Charter, but which emanate from
decisions of the Security Council or from recommendations by it and by the
General Assembly with a view to carrying out, with the consent of the States
interested, a mere action of police control without enforcement character."
(c) The Charter—it is asserted—has been violated because the Organization
has intervened in the domestic affairs of the Republic of the Congo in spite
of the provision of Article 2, paragraphs 1 and 7. In fact, it is added, one
of the purposes of the armed action authorized by the Security Council
(resolutions of 14 and 22 July and 8 August 1960, and 21 February and 24
November 1961) was to supply the Government of the Congo with the military
assistance which it needed to restore internal law and order and,
subsequently, to stamp out the secessionist movement of Katanga province;
but these two objectives—it is said—come clearly within the exclusive
competence of the local government and the Congolese people.
The view taken by the Security Council establishes a close connection
between the maintenance of internal law and order and the maintenance of
international peace and security, in view of the presence of Belgian troops
and the influence of complex interests within the country. It was added that
since the Congo was a new Republic, only recently having become a Member of
the United Nations, it should receive from the Organization all the
assistance which it has asked for to achieve its normal formation as a State
(Article I, para. 3, of the Charter). Finally, it was said that the
political constitution of the new State was founded upon the principle of
the confederal unity of the various provinces, of which Katanga was one; and
that, not having yet completed either its constitutional "process" or the
organization of its national powers with the participation of the
representatives of all the provinces, any kind of movement against the lot
fondamentale was premature and called for condemnation by the international
community.
This broadened interpretation of the new tutelary functions of the United
Nations in respect of new States clearly contains a theory which is a noble
conception from the humanitarian and civic point of view; but the scope of
this theory must first be reconciled by the Organization with the principle
laid down by Article 2, paragraphs 1 and 7, and likewise with the financial
possibilities of States Members. That is the question which has to be
solved.
As to the principle of non-intervention in matters within the domestic
jurisdiction, it is beyond dispute that the Organization has not in fact
committed any infringement in the case of the Congo, since it was the
Government of that State which, on its own initiative, asked for the
assistance of the United Nations. But the question [p 298] is not so simple
from the financing point of view. These new financial obligations of Member
States were not contemplated in the Charter. Hence it is doubtful whether a
contractual obligation to pay exists. It may be said that the policy of
assisting the Congo to settle its domestic affairs was adopted in the spirit
of Articles I (paragraph 3) and 55 (paragraphs (b) and (c)) of the Charter;
but in the field of international co-operation, expenses are met by means of
voluntary contributions and are not compulsorily apportioned among all
States. In any case, some general interpretative decision on the part of the
Organization is lacking on this subject.
(d) The States which raised objections to the expenditures in question
contend that there has been a violation of the Charter because the execution
of armed actions in the Middle East and the Congo was not made the military
and financial responsibility of a State or group of States under "special
agreements" signed with them by the Security Council (Article 43), but that
the actions in question were taken in hand directly by the General Assembly,
and therefore placed under the responsibility of the Organization and
entrusted to a special United Nations Force, for which there is no provision
in the Charter.
To understand and evaluate this objection, two questions must be considered:
one of law and one of fact.
The legal question is whether the negotiation of "special agreements" is,
according to the spirit of the Charter, such a basic one that, if such
agreements are not concluded, the action ordered should not be undertaken. I
incline not to think so. In practice it may occur that the State or group of
States called upon to supply armed assistance cannot do so at once or
decline to accept the responsibility. In the theory of the Charter—it should
be noted— there is no provision for such refusal but, in any case, that
would be sufficient to frustrate the decision of the United Nations to
maintain or re-establish peace. In that event, the Security Council must
fill the gap by means of direct measures. The principle of "institutional
effectiveness" which the Court has applied on certain occasions (Reports,
Advisory Opinion of n April 1949) indicates that the Organization may, in
such circumstances, seek in the spirit of the Charter the effective means of
attaining its purposes (Article 1). No other means would appear to be
available to the Organization but the formation of a special Force for the
operations.
One more point remains to be cleared up: are the States called upon to
intervene, by means of the "special agreements" mentioned in Article 43,
only States which are Members of the Security Council or only its permanent
Members, or can they be any other Member States of the Organization?
Undoubtedly, the view favourable to the first two hypotheses has been put
forward and may find support in the fact that the Members of the Council
are the responsible parties before the whole world in decisions on peace and
war; and [p 299] also in the fact that the permanent Members represent the
most important centre of gravity within the international community from the
point of view of power and resources. But the text of Articles 43 and 45, in
agreement with Article 2, paragraph 2, and Articles 17, 24 (paragraph 1) and
25 of the Charter, in my opinion, make it possible to recognize an
obligation on all States to answer, if necessary, the call of the Security
Council to participate in "special agreements". That is another question
where a decision by the United Nations is expected by the objecting States.
As to the question of fact, it seems to me that a mistake has been made when
it is stated, with regard to the Middle East and Congo, that "special
agreements" were not entered into. Several States replied favourably to the
Secretary-General's request to supply troops for the United Nations
expedition in Egypt FN1; and several of these countries did in fact send
troops and, probably, signed partial agreements stipulating the conditions
of their assistance. A similar situation arose in the case of the Congo,
when the Secretary-General reached agreement with several African States for
the provision of troops. It cannot therefore be said that the rule as
regards "special agreements" has been violated. The distinguishing feature
is that the carrying out of the armed action was not entrusted wholly to a
single State or to a group of States as laid down in Article 43, but rather
it was the United Nations which contributed as an organization a large share
of the expenses and which created an Emergency Force which was independent
but made up of the national contingents of several States and supplied by
them with arms, equipment, means of transport, etc., under special
agreements. Obviously, this type of United Nations force is not mentioned in
Article 43 and its origin must be sought in the notion strongly upheld in
the Assembly and the Secretariat that the cases of the Middle East and the
Congo were not cases coming under Chapter VII of the Charter (threats to the
peace, breaches of the peace, and acts of aggression), but actions of
security and supervision freely accepted by the parties concerned, having no
enforcement character. As an element of these actions, the creation of the
Emergency Force was held—in the opinion of the Assembly and the
Secretariat—to come within the power of the General Assembly to establish
secondary organs (Articles 14 and 22). In this view there would be no
obligation—so it has been maintained— to have regard only to the provision
of Article 43 with regard to "special agreements".
---------------------------------------------------------------------------------------------------------------------FN1
Official Records, Annexes, nth Session of the General Assembly, continuation
of agenda item 5 of the first emergency special session (1-10 November
1956). New York, 1956-1957—No. 153 of the dossier transmitted to the Court
by the Secretariat of the United Nations.
---------------------------------------------------------------------------------------------------------------------
The reservations which I have expressed on the scope of the General
Assembly's power of action are equally relevant here. And I [p 300] must
also make reservations as to whether a military force may be described as a
"subsidiary organ" of the United Nations, since institutional organs
presuppose a certain discretionary capacity of thought if they are to fulfil
conscientiously the duty assigned to them, and a military force lacks all
deliberative powers and is simply a disciplined executive instrument of
orders from on high. The Assembly would, no doubt, be able to create such an
instrument of action—endeavouring to overcome bureaucratic objections—if the
fundamental problem were first resolved in its favour, that is to say if it
were recognized that, leaving aside Article 43, there were certain
categories of military or para-military non-belligerent actions which it
could take up, independently of the Security Council and outside the special
agreements. No unwritten amendment of the Charter on this subject has so far
in my opinion been made because, from the first moment, the idea was
objected to by several States Members, which rejected the innovation. This
reluctance is closely bound up with another objection of a financial
character, which I shall now consider.
(e) The objection considered in the foregoing paragraph concerns the
political aspect of the absence of "special agreements" and their
replacement by the Emergency Force of the United Nations in the cases of the
Middle East and the Congo. But the objection has a wider bearing and
concerns at the same time the financial aspect of the actions undertaken for
the maintenance of peace. In the opinion of certain States, the expenditures
on this type of armed action should be borne exclusively by the State or
group of States called upon to carry out the action in accordance with
"special agreements" previously signed under Article 43; but not by all
States Members, as the practice of the General Assembly seeks to establish.
Certain States go further and take the view that, in accordance with the
spirit of the Charter, only Members of the Security Council and particularly
its permanent Members, should be required to sign and to finance "special
agreements" effecting armed operations by the Organization, taking into
consideration:
(a) the primary responsibility for the maintenance of peace assigned by the
Charter to Members of the Council;
(b) their decisive intervention in decisions concerning armed action by the
Organization (Articles 24, 25 and 39-43);
(c) the great share of authority which the Charter allots to permanent
Members in the political direction of the Organization (Article 27, para.
3).
Other, additional, criteria have been put forward, namely:
(d) the special responsibility of States which have a direct interest in the
pacification of the territory affected by the conflict; [p 301]
(e) the liability of the State or States which caused the disturbance of
the peace.
That is why, during debates in the various organs of the United Nations,
there was much discussion of the question whether the expenses incurred by
the application of resolutions authorizing armed actions are included or not
in the "expenses of the Organization" within the meaning of Article 17,
paragraph 2. Several Member States gave a negative reply to this question,
and maintained that expenditure on armed action is subject to special rules
different from the ordinary one laid down in paragraph 2 of that Article.
This view leads one to consider whether, in the intention of Article 43,
the "special agreements" presuppose that the financial burden of each armed
intervention will always fall completely and exclusively on the State or
group of States whose assistance has been asked for; or whether this
expenditure may be shared between those individual States and the
Organization as such; or borne by the Organization alone. In the absence of
any express rule—the Charter itself is not explicit on the matter—I think
that a consideration of the general context of Article 43 bears in favour
of the second interpretation. It is in fact laid down in paragraph 2 of that
Article that the "agreements" shall govern not only the numbers and types of
forces, etc., but also "the nature of the ... assistance to be
provided"—that is to say, in my view, whether this assistance shall be free
or paid for, or a mixture of both, and in what proportion. And if this
assistance is to be paid for wholly or partly by the Organization, the
amount which the latter bears will in principle constitute an "expense of
the Organization" within the meaning of Article 17, paragraph 2, of the
Charter. The case has also to be contemplated in which the State or States
called upon to carry out the armed action are not able to do so or to sign
"special agreements", the Organization itself in that case undertaking the
carrying out of the action. Furthermore, the text of Article 43, paragraph
1, and that of Article 2, paragraph 4, and Articles 45 and 48 in principle
places the responsibility for the maintenance of peace and consequently the
responsibility for the expenditure on all Member States.
A particular and an important aspect of the objections raised to the
inclusion in Article 17, paragraph 2, of expenditure for the maintenance of
peace is the amount—every day a larger amount— of that expenditure, in view
of the great extension of the armed interventions of the United Nations to
preserve or restore peace. This refers not only to the enforcement
operations coming under Article 43 of the Charter, but to any kind of armed
action giving rise to expenditure borne by the Organization; which is
exactly the case of the armed interventions described as not of an
enforcement but of a police character, such as those of the United Nations
Forces (UNEF and ONUC), a large proportion of the expenditure on which has
fallen upon the Organization. [p 302]
Certain Member States have, in this connection, maintained that it is
impossible for them in their national budgets to meet the international
obligations for the defence of peace, since the cost of these goes beyond
the economic capacities and the fiscal resources of their countries. This
argument carries particular weight with regard to under-developed countries,
whose primordial duty is to care for the fundamental needs of their own
population. It is maintained that the continual increase, in military
operations of this nature from the promulgation of the Charter up to the
present time constitutes a new factor which has created equally new
circumstances, and that these should be taken into consideration from a
legal point of view so as to safeguard equity and the interests of the
contracting parties. France has indeed maintained that to seek to make the
financial decisions of the Assembly prevail over the will of the
parliamentary authority of each State would amount to admitting the
existence in the United Nations of a supranational power which would be in
conflict with the Charter (Article 2, paras. 1 and 7). These assertions
undoubtedly deserve very thorough consideration. It is not merely a question
of quantity, for this real conflict of powers and obligations between two
public law persons must not be underestimated.
It is clear to me that, at the time of the signature of the Charter, none of
the States Members could have foreseen that the obligations which they
acknowledged in respect of the Organization could one day conflict with
their obligations under municipal law vis-à-vis their national communities.
Nobody foresaw that the increase in expenditure of the United Nations could
one day endanger the solvency of national budgets. But since this state of
affairs has arisen subsequently to the coming into force of the Charter, it
is obvious that such a new factor calls for very special consideration by
the competent organ of the Organization. The apportionment of assessments
according to the system of budgetary scales has been the subject of
continual criticisms. Some more explicit and formal compromise between the
budgetary necessities of the United Nations and the constitutional problem
of the objecting States must therefore be arrived at, so as to incorporate
in the Charter settlement some further rule covering the new situation. In
the meantime, the case not having been foreseen and not coming under any
specific pre-established agreement, it is not clear by virtue of what
principle of law the obligation to meet this type of expenditure ultra pacte
could be invoked. To declare, in these circumstances, that these types of
expenditure are expenses of the Organization, before there is any special
regulation in the matter, would in my view be an extremely serious step: it
would amount to placing certain States before the dilemma of failing in
their duties to the Organization or of acting to the detriment of their own
domestic law.
The General Assembly has seen the full importance of this problem, as also
the difficulties which it involves, and it has—I believe—[p 303] begun to
face it. It has introduced into the preamble of its most recent financial
resolutions some of the new criteria which have been suggested regarding the
different degrees of responsibility of certain States Members in meeting the
expenditure incurred in peace-keeping operations. But the adoption of a
special method taking such criteria into consideration has not yet come to a
satisfactory conclusion although indeed resolution 1619 (XV) of 21 April
1961 announced an intermediate solution, namely the estab-lishment of a new
scale of assessments for the extraordinary expenditure incurred in these
operations.
(f) The Secretary-General has been reproached with having violated the
Charter, in connection with the Middle East and Congo conflicts, by
discharging functions and responsibilities which belong to the Security
Council or to the General Assembly. But, in this respect, regard must be had
not only to Articles 22 and 29 of the Charter, which enable those organs to
establish subsidiary executive organs, but also to Article 98, under which
the Secretary-General, over and above his own functions, shall perform such
other functions as are entrusted to him by "the General Assembly, the
Security Council, the Economic and Social Council and the Trusteeship
Council". The General Assembly in its resolutions of 1956, and the Security
Council in its resolutions of 1960 and 1961, expressly charged the
Secretary-General with the implementation of their decisions regarding armed
action in the two countries. In the case of such mandates, the
Secretary-General acted in the name of and on behalf of the mandators. There
is therefore no usurpation of functions, unless it is shown that the
Secretary-General has gone beyond his rights in the exercise of his mandate.
5. From the foregoing examination it follows in principle—that is to say, by
a theoretical interpretation of the Charter and without contemplating any
specific case—that it may be affirmed that the expenses incurred by armed
actions legally undertaken for the maintenance of peace are expenses of the
Organization within the meaning of Article 17, paragraph 2. But, according
to the view of certain Member States, it equally follows that in the Middle
East and Congo conflicts, special circumstances of fact arose, because of
which resolutions were adopted by the organs of the United Nations involving
infringements of the Charter. In these circum-stances—they say—no reliance
can be placed as against Member States on obligations deriving from
resolutions which are not lawful.
Here is the point where a definintion is required. And it is not the Court
which can help to find it, since the request for an advisory opinion does
not include the question of the legality or the validity of the resolutions
to which it refers. I shall therefore confine myself to certain
observations regarding this deadlock, so as to explain my views as to the
answer to be given to the request.[p 304]
The United Nations is an association of States in which the rights and the
obligations of the Members are contractually prescribed in its constituent
charter. It is the Charter which governs the mutual relations of the
associates and their relations with the Organization itself. Only because
of their acceptance of the purposes of the Charter and the guarantees
therein laid down have the States Members partially limited the scope of
their sovereign powers (Article 2). It goes without saying, therefore, that
the real reason for the obedience of States Members to the authorities of
the Organization is the conformity of the mandates of its competent organs
with the text of the Charter. This principle of the conditional link between
the duty to accept institutional decisions and the conformity of those
decisions with the Charter is enshrined in Article 25, which, although
referring explicitly to the Security Council, in my opinion lays down a
fundamental basic rule which is generally applicable to the whole system of
the Charter. Article 2, paragraph 2, confirms this interpretation.
There is therefore a legal presumption that each of the organs of the
Organization is careful in its actions to comply with the prescriptions of
the Charter; but when, in the opinion of one of the Member States, a mistake
of interpretation has been made or there has even been an infringement of
the Charter, there is a right to challenge the resolution in which the error
has been noted for the purpose of determining whether or not it departed
from the Charter.
It cannot be maintained that the resolutions of any organ of the United
Nations are not subject to review: that would amount to declaring the
pointlessness of the Charter or its absolute subordi-nation to the
judgment—always fallible—of the organs.
But the case of the United Nations is clearly a special one. Having regard
to the fact that it is the highest international institution as being an
association of sovereign States, its unfettered autonomy is subject to no
higher tribunal capable of reviewing its acts. It is the institution itself
which has the power to rectify or to confirm them. That is probably why no
provision was made in the Charter for any supervisory organ to determine
legality or conformity with the Charter, such as some tribunal to which it
would be possible to refer—in the manner of judicial proceedings—the
objection of a Member State to a decision of the Organization. But that in
no way excludes the Organization's function of dealing with complaints by
its Members. And I think I find evidence that that was the intention of the
Charter in the text of its Article 96, which makes provision for the advice
of the International Court of Justice on legal questions. An advisory
opinion, taking the place of judicial proceedings, is a method of voluntary
recourse which, if only by way of elucidation, precedes the decision which
the Organization is called upon to give with regard to legal objections
raised by Member States. [p 305]
In respect of the Middle East and the Congo, observations have been made by
certain States on various matters: some of them stating that certain
resolutions of the General Assembly or the Security Council are not in
conformity with the Charter; others pointing out possible mistakes of
interpretation of the Charter which have imposed on all Member States
obligations for which there should not be general responsibility; others,
again, asking that the Organization should lay down rules on matters for
which there is no provision in the Charter. The non-obligatory character of
decisions which result from a mere recommendation and not from an imperative
mandate by a principal organ has also been pointed out. This attitude on the
part of certain States derives from an inherent right of all members of
associations which have a body of rules to which the acts of the institution
have to conform. This principle of conformity with the rules is, one must
not forget, the basis for a contractual obligation. The fact that, faced
with this number of objections, the General Assembly has asked for the legal
opinion of the Court is—in my view—the best proof that this organ of the
United Nations intends to decide in accordance with law the objections put
forward by several of its Members and—perhaps—to embark upon a review or
adaptation of the Charter to the new circumstances. Meantime, it is not
possible to determine whether, with regard to the objecting States, the
expenditures incurred in the operations in Egypt and the Congo are lawful
expenses and, accordingly, expenses of the Organization.
It might be said that the resolutions objected to having been adopted by the
majority required by the Charter (Article 18, para. 2, and Article 27, para.
3) are legally valid and indeed binding on all Member States, although some
of them voted against or did not take part in the vote. This is, indeed, the
general principle which governs the agreements of any association with a
view to guaranteeing institutional unity and efficacity. But that refers
only to the formal or external legality and not to the intrinsic validity of
the resolutions. Non-conformity with the Charter is a question of intrinsic
legality which may be raised by States Members even though the formal
legality may be indisputable. An objection to the substantive legality
relates to the very existence of an obligation, since the very existence of
a contractual bond is in issue.
Furthermore, the Organization must pronounce on the allegation that
resolutions which approve mere recommendations of the Assembly or the
Security Council do not have obligatory effect for States which have not
accepted them. This is a special feature of the system of the United Nations
as to which nothing is denned in the Charter. What would be the difference
between an imperative resolution of the Security Council and another
involving simply a recommendation of the Assembly or of the Council itself?
Does the recommendation become binding on all, by virtue of the approval [p
306] of the majority? The word recommendation implies suggestion, advice,
advisability, usefulness, but not an order or an imperative mandate.
Logically, suggestion or advice cannot normally be transformed into an
obligation. It is the question which has to be determined.
Turning to another aspect of the matter, it has been said that the General
Assembly's resolutions regarding the commitment of resources for the
operations in the Middle East and in the Congo or the financing of
operational expenditures ("derived" resolutions) are themselves independent
and ought not to be considered as depending on the basic resolutions which
authorize military opera-tions. Each organ of the United Nations—it is
said—is the judge of its own competence; and the financial resolutions of
the Assembly have, in themselves, a binding force which proceeds from the
authority and the judgment of this organ, independently of the connection
with the basic resolutions. A legal defect of any kind which might affect
these last resolutions would not, therefore, communicate its defect to the
financial resolutions of the Assembly. I do not agree with this view. One
cannot demolish by. this type of reasoning the substantial and objective
connection of cause and effect between the resolution authorizing armed
action and a resolution providing for funds to cover the expenditure
involved. The legitimacy of the Assembly's competence to fulfil its duty of
financing the Organization's expenses is one thing;- whether the purpose of
the expenses and the method of financing are or are not in conformity with
the Charter is a very different matter. An examination of this latter
question is in my opinion permissible with regard to all types of
resolution. Moreover, some of the objections raised cover, not only the
basic resolutions but also in a direct fashion those of a financial nature,
with regard to the apportionment of the burden of the expenses among all
the States.
A complication with regard to the financial resolutions lies in the fact
that many of them lay down the obligation to pay, by way of reimbursement,
for certain expenses met out of credits supplied by third parties. Both the
honour and the good faith of the Organization require the discharge of this
type of obligation, even if it originated in defective or unlawful
resolutions. I think that the solution is to be found in the general system
of the Charter itself. If the resolutions were adopted according to the
prescribed forms, by the majority of Member States required by the Charter,
there is a provisional presumption of legality in favour of these decisions.
The isolated cases of allegations on the part of some State or States
against the validity or conformity with the Charter of such resolutions
should also be decided by the competent organ at the appropriate time; but
in the meantime the effects of the resolutions towards third parties should
remain intact. Two possible solutions may be considered: either the
performance of the obligations is borne by the States which explicitly or
implicitly accepted the re-[p 307]solution in question; or the
responsibility is ascribed to all State Members—and, in the latter case,
after the settlement of objections put forward by any State, internal
arrangements of compensation may be made if the decision is in favour of the
objecting State. The first solution might principally be applied when it is
a question of resolutions deriving from simple recommendations, and the
second solution when the obligation derives from an imperative mandate by
the competent organ.
6. What I have said above suffices, I think, to explain why I cannot reply
simply yes or no to the question put in the request for an advisory opinion,
since in my view a substantial element of appraisement is lacking, namely
the ascertainment of the conformity or non-conformity with the Charter of
certain resolutions mentioned in the request, which have been the subject of
legal objections on the part of various Member States.
From my present statement it is possible to infer my own judgment with
regard to these objections, some of which in my opinion are ill founded,
while there are serious reasons in support of others. In any case, I think
it indispensable to seek a legal definition which decides as to the legality
of all these objections or which expressly governs situations not provided
for in the Charter or having arisen after the promulgation of the Charter.
We are faced with a situation of uncertainty which cannot be ignored. The
financial crisis which has occurred within the Organization is only the
reflection of another crisis the subject of which is the very substance of
the Charter. But the fact is that the Court has not to pronounce on this
subject, not only because of the character of this advisory opinion (which
is an opinion, not a judgment) but also because the question put to us for
an opinion is limited entirely to determining whether the expenditures in
the Middle East and in the Congo constitute or do not constitute "expenses
of the Organization", without reference to the aspect of the legality of
those expenditures.
Thus, I repeat what I have said above: in principle, I am of opinion that
expenditures validly authorized by the competent organ for the carrying out
of an armed action with the purpose of maintaining international peace and
security constitute "expenses of the Organization". But in the case of the
expenditures authorized for the operations in the Middle East and the Congo,
it is for the competent organ of the United Nations to pronounce on the
legal objections put forward by certain States against the relevant
resolutions. Only after this pronouncement on the legality or the
non-legality of these resolutions would, in my opinion, a reply to the
request be possible.
In consequence, I conclude that the expenditures referred to in the request
for an advisory opinion would constitute expenses of the Organization if,
after consideration of the legal objections [p 308] raised by certain Member
States, the competent organ of the United Nations succeeds in determining as
legal and valid the resolutions by virtue of which the expenses in question
were incurred.
Since this definition has not been given and having regard to the
limitations of the request, the Court—in my view—cannot declare whether the
expenditures in question are or are not expenses of the Organization within
the meaning of Article 17', paragraph 2, of the Charter. But if the Court
must in voting reply categorically "yes" or "no" to the question put in the
request, my reply can only be negative for, according to the foregoing, I am
not in a position to assume the responsibility for an affirmative
characterization of the legality of the expenditures.
(Signed) J. L. Bustamante. |
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