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

Published online by Cambridge University Press:  28 March 2017

Covey Oliver
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Abstract

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Type
Judicial Decisions
Information
American Journal of International Law , Volume 56 , Issue 4 , October 1962 , pp. 1053 - 1083
Copyright
Copyright © American Society of International Law 1962

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References

1 Caption by the Court.

2 Full text of majority opinion, except for introductory matter, and digests of remainder, by Wm. W. Bishop, Jr.

3 Composed for this case of President Winiarski, Vice President Alfaro, and Judges Basdevant, Badawi, Moreno Qnintana, Wellington Koo, Spiropoulos, Sir Percy Spender, Sir Gerald Fitzmaurice, Koretsky, Tanaka, Bustamante y Rivero, Jessup, and Morelli.

4 The English text of the majority opinion is authoritative.

5 Judge Spiropoulos declared that the General Assembly resolutions authorizing the financing of the operations in the Middle East and the Congo created obligations on the Members, but declined to express an opinion on the conformity with the Charter of the several resolutions relating to the United Nations operations in the Middle East and the Congo, because the General Assembly rejection of the French amendment offered to the resolution asking the advisory opinion showed ‘ ‘ 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.”

6 Explaining his ideas of interpretation, Sir Percy Spender said: “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. . . . “

He pointed to the difficulties in looking to the intention of the parties, particularly when a multilateral treaty, and especially one to which later parties might adhere, is in question. Of such a treaty as the Charter, he said: “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.” He added: “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. . . . 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. . . .”

He added: “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.”

Although admitting that it is “ 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 in interpretation,” he found difficulty “ in accepting the proposition that a practice pursued by an organ of the United Nations may be equated with the 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.’’ This was particularly true when a minority of members of the organ opposed the decision reached by a majority. He concluded:

“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 be disregarded.”

7 Judge Koretsky criticized in detail the U.N. actions with respect to the Middle East and the Congo, beginning with the Nov. 4, 1956, General Assembly resolution, which he found at fault in that it directed the Secretary General to secure the cessation of hostilities, and that 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.”

He pointed out further that “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.” He added that “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.”

Explaining his views on interpretation, he said: “ 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’.”