20 July 1962

 

General List No. 49

 
     

international Court of Justice

     
     
     

Certain Expenses of the United Nations (Article 17, Paragraph 2, of the Charter)

 

 

 

     
     
 

Advisory Opinion

 
     
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BEFORE: President: Winiarski;
Vice-President: Alfaro;
Judges: Basdevant, Badawi, Moreno Quintana, Wellington Koo, Spiropoulos, Sir Percy Spender, Sir Gerald Frrz-maurice, Koretsky, Tanaka, Bustamante y Rivero, Jessup, Morelli
   
PermaLink: http://www.worldcourts.com/icj/eng/decisions/1962.07.20_expenses.htm
   
Citation: Certain Expenses of the United Nations (Article 17, Paragraph 2, of the Charter), Advisory Opinion, 1962 I.C.J. 151 (July 20)
 
     
 
 
     
 

[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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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[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.
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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.
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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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