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Expenses of the United Nations for Peace-Keeping Operations: The Advisory Opinion of the International Court of Justice

Published online by Cambridge University Press:  22 May 2009

Leo Gross
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Extract

The advisory opinion of the International Court of Justice adopted by 9 votes to 5 on July 20, 1962, affirmed that the expenditures authorized for operations in the Congo (ONUC) by General Assembly resolutions from December 20, i960, to October 30, 1961, and the expenditures authorized for the operations of the UN Emergency Force (UNEF) in the Middle East from November 26, 1956, to December 20, 1960, constitute “Expenses of the Organization” within the meaning of Article 17, paragraph 2, of the Charter of the United Nations. Though the Court, for reasons discussed below, refrained from declaring it explicitly, the opinion had the effect of holding that Members of the UN were legally bound to pay the assessments made by the Assembly to defray the costs of the two operations. The Court arrived at this conclusion by a relatively simple process of reasoning: first, it found that the text of Article 17, paragraph 2, related to expenses incurred in carrying out the purposes of the Organization; second, it examined the expenditures referred to above, and found that they were incurred with that end in view; thirdly and finally, it examined arguments which had been advanced against its conclusion and found them without merit. Some of these arguments will be examined later.

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Articles
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International Organization , Volume 17 , Issue 1 , Winter 1963 , pp. 1 - 35
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Copyright © The IO Foundation 1963

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References

1 The abbreviation ONUC is taken from the French: Organisation des Nations Vnis Congo.

2 Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion of July 20, 1962: I.C.J. Reports 1962, p. 151. Judge Spiropoulos voted with the majority but made a declaration, ibid., p. 180; Judges Sir Percy Spender, Sir Gerald Fitzmaurice, and Morelli wrote separate opinions; the President of the Court, Winiarski, and Judges Basdevant, Moreno Quintana, Koretsky, and Bustamante y Rivero wrote dissenting opinions. The volume of Pleadings, Oral Arguments, Documents in this case will be cited as Pleadings.

3 Report of the Committee on Contributions, General Assembly Official Records (17th session), Supplement No. 10, p. 4Google Scholar. According to the statement on the collections of contributions as of November 30, 1962, the total due was reduced to about $100 million. (Document ST/ADM/SER.B/166, p. 28.)

4 Report of the Rapporteur of Committee IV/2, UNCIO Document 933, IV/2/42, Vol. 13, p. 710.

5 On this point see the declaration by Spiropoulos, Judge. I.C.J. Reports 1962, p. 180Google Scholar.

6 Dissenting opinion of Judge Bustamante, ibid., p. 298.

7 I.C.J. Reports 1940, p. 179. See also, Gross, Leo, “Some Observations on the International Court of Justice,” American Journal of International Law, 01 1962 (Vol. 56, No. 1), p. 53CrossRefGoogle Scholar.

8 I.C.J. Reports 1962, p. 167.

9 Ibid., p. 168.

10 Permanent Court of International Justice, Series A, No. 10, p. 18.

11 See Security Council Resolution of August 9, 1960, Document S/4426, and Miller, E. M., “Legal Aspects of U.N. Action in the Congo,” American Journal of International Law, 01 1961 (Vol. 55, No. 1), p. 4CrossRefGoogle Scholar.

12 See Johnson, D. H. N., “The Effect of Resolutions of the General Assembly of the United Nations,” Royal Institute of International Affairs, British Year Book, of International Law, 1955–1956 (London: Oxford University Press, 1962), Vol. 32, pp. 97–123Google Scholar.

13 Financial Obligations of Members of the United Nations (Article 17, paragraph 2, of the Charter): Written Statements, Distr. 62/21, p. 78. English translation provided by the Registry of the Court. Pleadings, p. 134.

14 See Written Statements for statements by Italy, p. 70; Denmark, pp. 107–108; The Netherlands, pp. 114 and 118 ff.; the United States, pp. 140, 141, 147, 149; Canada, pp. 167–169; Japan, pp. 171–173; the United Kingdom, pp. 188–189; and Ireland, p. 196. See also Pleadings, pp. 126, 163–164, 170, 172, 175, 193, 194, 200, 202, 220–222, 224–226, 242–243, 249.

15 Pleadings, p. 309.

16 Ibid., p. 337. See also the remarks of the United Kingdom representative on pp. 338, 340, and 349.

17 ibid., pp. 366–367. Along similar lines, see the oral statement of the representative of Ireland, ibid., p. 389.

18 Ibid., p. 385. Italics in the original.

19 I.C.J. Reports 1954, p. 47.

20 I.C.J. Reports 1954, p. 59.

21 See, for instance, the statement of the Norwegian representative. Pleadings, pp. 367–368.

22 This resolution was approved by the House of Representatives on August 10, 1954, and by the Senate on August 20, 1954. Congressional Record, Vol. 100, Part II, p. 13949, and Part 12, p. 15486.

23 U.S. Participation in the UN, Report by the President to the Congress for the year 1954. Department of State Publication 5769, p. 202.

In a speech in the Fifth Committee, Senator Fulbright declared that “if the Fifth Committee and the General Assembly refused to grant any relief with regard to awards of the Administrative Tribunal, his Government would be confronted with serious questions, for such a decision would undoubtedly arouse greater opposition to the United Nations in the United States than now exists.” General Assembly Official Records … Fifth Committee (9th session), p. 302Google Scholar.

24 Report of the Fifth Committee and General Assembly Resolution 888C (IX) of December 17, 1954. Ibid., Annexes, p. 12.

25 In the preceding paragraph the United States representative argued that the United Nations could appeal to Members for contingents of military forces or it could try, with the consent of the states concerned, to raise a force by direct recruitment, but, he said, “if those consents were obtained, it is hard to see what would prohibit the Organization from raising such a force and, if it did so, from paying for it by assessment.”

26 Pleadings, pp. 424 f. Italics in the original. See also p. 29, footnote 78, below.

27 Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion of April 11, 1949: I.C.J. Reports 1949, p. 182.

28 See p. 3 above.

29 This was so, for instance, with respect to the Second Admissions Case, the Interpretation of Peace Treaties (2nd Phase) Case, the Reparation for Injuries Case, and the advisory opinion granted at the request of the Intergovernmental Maritime Consultative Organization in connection with the constitutionality of the composition of the Maritime Safety Committee.

30 I.C.J. Reports 1962, p. 195. But see his statement (p. 196) relating to Article 17, paragraph 2, which is not free from ambiguity. Sir Percy's view is identical with that of the French government, which, in its written statement, declared: “From the beginning of the operation of the United Nations, customary rules or practices contrary to the Charter can have become established only if such customary rules or practices have been uniform and not given rise to controversy.” English translation supplied by the Registry. Pleadings, p. 133.

31 On this problem see Gross, Leo, “States as Organs of International Law and the Problem of Autointerpretation,” in Law and Politics in the World Community, edited by Lipsky, George A. (Berkeley: University of California Press, 1953), pp. 59 ffGoogle Scholar.

32 I.C.J. Reports 1962, p. 198.

33 UN Document A/L.378. The French amendment would have had the effect of changing the request to read: “Were the expenditures authorized” in a number of General Assembly resolutions relating to ONUC … and UNEF “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?”

34 Said Judge Basdevant: “Where it would have been possible to obtain from an opinion 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 has been done up to the end of 1961.” (I.C.J. Reports 1962, p. 237.)

35 I.C.J. Reports 1962, p. 160.

36 Ibid., p. 161. See also pp. 23–24 below.

37 I.C.J. Reports 1962, pp. 187 ff. (Sir Percy Spender's separate opinion) and pp. 201 f. (Sir Gerald Fitzmaurice's separate opinion).

38 Ibid., p. 201.

39 The discrepancy must have been quite substantial, as might be inferred from the following figures: as of December 31, 1961, 30 out of 81 Members, and five out of eighteen newly admitted Members, had paid in full their assessments for UNEF; seventeen out of 81 Members, and two out of eighteen newly admitted Members, had paid in full their assessments for ONUC. (Financial Reports and Accounts for the Year ending 31 December 1961, General Assembly Official Records [17th Session], Supplement No. 6, pp. 89 f. and 98 f.)Google Scholar The tables for the amounts for this operation would have to be examined more carefully in order to determine accurately the amounts actually contributed by Members. It has been the practice of the United Nations to reduce the assessments for a substantial number of Members by 50 to 80 percent and to apply voluntary contributions to offset deficits remaining after these reductions. See, for example, General Assembly Resolutions 1732 (XVI) and 1733 (XVI) of December 20, 1961. Judge Koretsky considered this practice as a device to influence Members in voting on the financial resolutions relating to UNEF and ONUC. (I.C.J. Reports 1962, pp. 266 and 267.)

40 The Norwegian representative enumerated the various peace-keeping actions (Pleadings, pp. 363 f.). None of them was a clear precedent for either UNEF or ONUC, although he found a striking similarity between UNEF and the United Nations Observation Group in Lebanon (UNOGIL), the expenses of which were carried on the regular budget. There are two important points of difference, however: first, as the Secretary-General defined its mission, UNEF “would be more than an observers’ corps, but in no way a military force” (Second Report of Secretary-General of November 6, 1956, approved by the General Assembly Resolution 1000 [ES-I], November 5, 1956). Secondly, the consensus among the Members included investigation and observation operations but not other peace-keeping activities. Therefore, UNOGIL was within the ambit of this consensus, and UNEF was not.

41 I.C.J. Reports 1962, p. 178.

42 Ibid., p. 173. Italics supplied.

43 Ibid., p. 175.

44 Pleadings, p. 408.

45 Ibid., p. 123.

46 I.C.J. Reports 1962, p. 179.

47 See Judge Basdevant's dissenting opinion, ibid., pp. 235 ff.

48 Oral Statements, pp. 400 f. The Soviet representative relied not merely on Article 43, but on Article 48, paragraph 1, as well. See also the dissenting opinion of Koretsky, Judge, I.C.J. Reports 1962, pp. 274 ffGoogle Scholar.

49 Pleadings, p. 305.

50 Goodrich, Leland M. and Hambro, Edvard, Charter of the United Nations (second edition revised; Boston: World Peace Foundation, 1949), p. 184Google Scholar, footnote 90. Pleadings, pp. 232, 382.

51 I.C.J. Reports 1962, p. 166.

52 General Assembly Official Records (6th Session), Supplement No. 13, p. 21Google Scholar, paragraphs 164–165.

53 General Assembly Official Records (7th Session), Supplement No. 17, p. 11Google Scholar, paragraphs 82 and 83. Italics supplied.

54 I.C.J. Reports 1962, p. 165.

55 Ibid., p. 162.

56 Ibid., pp. 163 and 172.

57 Ibid., p. 165.

58 Ibid.

59 Ibid., p. 167, and see p. 4 above.

60 I.C.J. Reports 1962, p. 274; Pleadings, p. 194.

61 I.C.J. Reports 1962, p. 171.

62 Ibid., p. 172.

63 Ibid., p. 177.

64 Pleadings, p. 131. English translation provided by the Registry of the Court.

65 This point is elaborated in Koretsky's, Judge dissenting opinion, I.C.J. Reports 1962, p. 274Google Scholar.

66 Ibid., p. 203.

67 Ibid., p. 210.

68 It should be noted though that, while in the Working Group of Fifteen eleven Members including the Soviet Union and the United States supported this statement, and none were opposed, three (Brazil, China, and India) reserved their position and one (France) abstained. (UN Document A/4971, p. 7, paragraph 22.)

69 I.C.J. Reports 1962, p. 212.

70 Ibid., p. 213.

71 Ibid., p. 214.

72 Ibid., p. 215.

73 In his view there is a presumption in favor of the validity of expenditures if they are incurred “in the apparent furtherance of the purposes of the Organization.… Only if 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.” Ibid., p. 204.

74 Interpretation of Peace Treaties with Bulgaria, Hungary, and Romania (Second Phase), Advisory Opinion of July 18, 1950: I.C.J. Reports 1950, p. 229.

75 The General Assembly at its 1199th meeting on December 19, 1962, by a vote of 76 to 17, with 8 abstentions, adopted Resolution 1854 A (XVII) by which it “accepts the opinion of the Court.” At the same time the Assembly by a vote of 78 to 14, with 4 abstentions, adopted Resolution 1854 B (XVII) the text of which is as follows:

The General Assembly,

Recognizing that peace-keeping operations of the United Nations, such as those in the Congo and in the Middle East, impose a heavy financial burden upon Member States, and in particular on those having a limited capacity to contribute financially,

Recognizingthat in order to meet the expenditures caused by such operations a procedure is required different from that applied to the regular budget of the United Nations,

Taking into account the advisory opinion of the International Court of Justice of 20 July 1962 in answer to the question contained in resolution 1731 (XVI),

Convinced of the necessity to establish at the earliest possible opportunity financing methods different from the regular budget to cover in the future peace-keeping operations of the United Nations involving heavy expenditures, such as those for the Congo and the Middle East,

1. Decides to re-establish the Working Group of Fifteen with the same membership as that established in resolution 1620 (XV) and to increase its membership to twenty-one by the addition of six Member States to be appointed by the President of the General Assembly with due regard to geographical distribution as provided for in resolution 1620 (XV), to study, in consultation as appropriate with the Advisory Committee on Administrative and Budgetary Questions and the Committee on Contributions, special methods for financing peace-keeping operations of the United Nations involving heavy expenditures such as those for the Congo and the Middle East, including a possible special scale of assessments;

2. Requests the Working Group of Twenty-One to take into account in its study the criteria for the sharing of the costs of peace-keeping operations mentioned in past resolutions of the General Assembly, giving particular attention to the following:

(a) The references to a special financial responsibility of members of the Security Council as mentioned in resolutions 1619 (XV) and 1732 (XVI);

(b) Such special factors relating to a particular peace-keeping operation as might be relevant to a variation in the sharing of the costs of the operation;

(c) The degree of economic development of each Member State and whether or not a developing State is in receipt of technical assistance from the United Nations;

(d) The collective financial responsibility of the Members of the United Nations;

3. Requests further the Working Group of Twenty-One to take into account any criteria proposed by Member States at the seventeenth session of the General Assembly or submitted by them directly to the Working Group;

4. Requests the Working Group of Twenty-One to study also the situation arising from the arrears of some Member States in their payment of contributions for financing peace-keeping operations and to recommend, within the letter and the spirit of the Charter, arrangements designed to bring up to date such payments, having in mind the relative economic positions of such Member States;

5. Requeststhe Working Group of Twenty-One to meet as soon as possible in 1963 and to submit its report with the least possible delay and in any case not later than 31 March 1963;

6. Requests the Secretary-General to distribute the report of the Working Group of Twenty-One to Member States as soon as possible with a view to its consideration when appropriate by the General Assembly.

It will be noted that in spite of the words “taking into account the advisory opinion” in its Preamble, the resolution largely signifies a return to the status quo which prevailed prior to the request addressed to the Court. Whatever the retrospective effect of the advisory opinion may be, insofar as offering “authoritative legal guidance” for the future, the opinion may yet turn out to have been a Pyrrhic victory. This would be so if the Working Group felt it advisable to fall back on the recommendations of the Collective Measures Committee referred to above. In any event, the Working Group has a virtually free hand in its search for an acceptable solution.

76 See the separate opinion of Fitzmaurice, Judge Sir Gerald, I.C.J. Reports 1962, p. 210Google Scholar; quoted p. 23 above.

77 See the dissenting opinion of Winiarski, President, I.C.J. Reports 1962, p. 228Google Scholar.

78 Pleadings, p. 403. That this implication was known to and considered by governments favoring an affirmative reply has already been shown. It may, however, be useful to include here the following observation by the United States representative. Arguing against the French thesis which was shared to some extent by the Soviet government, he declared:

It may have a certain plausibility to say that, if the Organization cannot compel a State to contribute forces, it cannot compel it to pay for forces contributed by others. But it would be equally plausible and equally erroneous to say that, since a national government cannot compel one of its citizens to work on a dam, it cannot tax him to pay for the work of others. (Pleadings, p. 425.)

Thus, by attempting to rebut the French fears, he furnished strong support for them by using the analogy between the power to tax of a national government, which is an attribute of sovereignty, and the budgetary power of the United Nations, which is of a different nature. Sir Gerald, referring to this, or possibly another quite similar statement—he did not identify the representative he had in mind—said with approval: “This position was apdy compared.… “ (I.C.J. Reports 1962, p. 212.)

79 I.C.J. Reports 1962, p. 197. Although he arrived at a different conclusion on the principal issue, he concurred with the French government in saying that once a question is put to the Court, it passes ”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.” (Ibid.) The statement of the French government was as follows:

The Government of the French Republic would first of all point out that too great importance should not be attached to statements [déclarations] voted on a political plane and during a lengthy examination of a difficult question. Just as, in negotiations between States, the Court has decided that the successive proposals of one of the States cannot be relied upon against it after the end of the negotiations and when the case passes on to the legal plane, in the same way the Government of the French Republic recognizes that a case brought before the Court as the result of a request for an advisory opinion takes on a new character, and that only legal considerations should and can henceforth be invoked. (Pleadings, p. 132. English translation provided by the Registry.)

80 I.C.J. Reports 1962, p. 197. The whole sentence is as follows: “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.”

81 This is said without accepting fully the Court's very brief statement of the consequences of acts ultra vires the Organization or Judge Morelli's more elaborate analysis. (Ibid., pp. 168 and 220 ff.)

82 See p. 5 above, footnote 11.

83 I.C.J. Reports 1962, p. 270.

84 Ibid., p. 275.

85 On this point see the observations of Judge Sir Gerald Fitzmaurice. in his separate opinion. (I.C.J. Reports 1962, p. 203.) Sir Gerald's attempt to find a limitation in the distinction between mandatory and permissive purposes of the Organization has already been discussed (see pp. 24–26 above). In the present submission, the attempt has not been successful.

86 See p. 30, footnote 79, above and the following statement made in the Working Group of Fifteen:

As it is planned to ask the International Court of Justice for an advisory opinion on the General Assembly's financial competence outside the operational budget of the Organization itself, the French delegation feels bound to reserve its position on the substance of the legal question. For that reason it wishes to state that neither the comments it made during the discussions in the Working Group of Fifteen, nor the votes it cast, must be taken to express legal principles; they represent only the co-operation of the French representatives in seeking pragmatic solutions. The positions it then adopted do not, therefore, prejudge in any way the statement of principle which the French delegation reserves the right to make on the problem if the opinion of the International Court of Justice is sought. (Report of the Working Group of Fifteen. UN Document A/4971, annex II, p. 6.)

87 For this reason the attempt to distinguish the consequences of a valid resolution for Members that vote for or against or abstain on a given resolution, as Judge Sir Gerald Fitzmaurice seems to suggest, appears unresponsive to the corporate character of the actions of the Organization. (I.C.J. Reports 1962, pp. 210 ff. and p. 24 above.) The General Assembly and the Security Council are more than the traditional diplomatic conferences in which, it is believed, the distinction has its origin.

88 He said: “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.” (Ibid., p. 278.)

89 See Resolutions adopted by the Institute of International Law at its session in Amsterdam, September 18–27, 1957. American Journal of International Law, 01 1958 (Vol. 52, No. 1), pp. 103–107Google Scholar.

90 Advisory Opinion of June 8, 1960: I.C.J. Reports 1960, p. 150. See also Rosenne, S., “La Cour Internationale de Justice en 1960,” Révue Générale de Droit Internationale Public, 1961 (No. 3), p. 44 (of reprint)Google Scholar .