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 resolution 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 or 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 nonconformity 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 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. APPENDIX C WRITTEN STATEMENT SUBMITTED BY THE GOVERN- MENT OF THE UNITED STATES OF AMERICA TO THE INTERNATIONAL COURT OF JUSTICE ON THE FINAN- I. The General Assembly, in the assessment resolutions before the Court, unmistakably manifested its intention to treat expendi- tures for ONUC and UNEF as "expenses of the Organization" under Article 17 of the Charter, to be apportioned among the States Members of the United Nations. A. Assessment resolutions relating to UNEF. B. Assessment resolutions relating to ONUC. II. The legal consequence of the General Assembly assessment reso- lutions, invoking and exercising the Assembly's authority un- der Article 17, was to create binding legal obligations on Mem- A. The General Assembly is empowered to create legally binding financial obligations on Member States by levying assessments for "expenses of the Organization" under Article 17 of the Charter__ B. The power of the General Assembly to create legally binding financial obligations is not limited by the fact that the UNEF and ONUC assessments were levied to finance activities of the Organization for the mainte- nance of international peace and security- 1. The language of the Charter... 2. The practice of the League of Nations. C. The power of the General Assembly to create legally binding financial obligations is not limited by the fact that the UNEF and ONUC assessments were for the purpose of financing expenditures under resolutions III. The validity of the resolutions establishing UNEF and ONUC is not in issue and, in any case, is clearly established.. IV. Contrary contentions advanced in discussions of the General As- 86138-62- -39 WRITTEN STATEMENT SUBMITTED BY THE GOVERNMENT OF THE UNITED STATES OF AMERICA TO THE INTERNATIONAL COURT OF JUSTICE ON THE FINANCIAL OBLIGATIONS OF MEMBERS OF THE UNITED NATIONS THE QUESTION The question presented to the Court is whether assessments made by the General Assembly to meet the costs of the United Nations Emergency Force and United Nations Operations in the Congo are "expenses of the Organization" within the meaning of Article 17(2) of the Charter, and are, therefore, legally binding upon the States Members of the United Nations. It is a question of fundamental importance to the fiscal authority of the United Nations, and thus to the capacity of the Organization to carry out the responsibilities laid upon it by the Charter. The issue comes before the Court by virtue of the request for an advisory opinion contained in General Assembly Resolution 1731 (XVI) of 20 December 1961. The General Assembly, "Recognizing its need for authoritative legal guidance as to obligations of Member States under the Charter of the United Nations in the matter of financing United Nations operations in the Congo and in the Middle East, submitted the question in the following terms: 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? Despite its important ramifications, the question presented is limited and precise. It asks whether the designated resolutions, imposing assessments upon States Members, have the effect of creating financial obligations binding upon those States. THE JURISDICTION OF THE COURT The jurisdiction of the Court is founded on Article 96(1) of the Charter, which provides that: ... The General Assembly . . may request the International Court of Justice to give an advisory opinion on any legal question. Article 65 of the Statute of the Court authorizes the Court to respond to such a request. The question presented is a "legal question." It concerns the legal consequences of assessment resolutions of the General Assembly in the light of Article 17 of the Charter. The question is whether the expenditures authorized by these resolutions are "expenses of the Organization" within the meaning of the Charter, and therefore give rise to a legal obligation of States Members to pay these expenses "as apportioned by the General Assembly." The question clearly falls within the jurisdictional ambit marked out by this Court in earlier opinions. See Admission of a State to the United Nations (Charter, Art. 4), Advisory Opinion: I.C.J. Reports 1948, p. 57; Competence of Assembly regarding admission to the United Nations, Advisory Opinion: I.C.J. Reports 1950, p. 4; Interpretation of Peace Treaties, Advisory Opinion: I.C.J. Reports 1950, p. 65. STATEMENT OF FACTS A. The United Nations Emergency Force (UNEF) On 29 October 1956, Israeli armed forces advanced into Egyptian territory, and large-scale hostilities broke out between Israel and Egypt. On 30 October, the Governments of the United Kingdom and France issued an ultimatum to Israel and Egypt to cease military operations and to withdraw their forces to a distance of ten miles from the Suez Canal. The Security Council met urgently in response to these developments. Resolutions were introduced calling for a cease-fire and withdrawal of Israeli forces and calling on all parties to refrain from the use or threat of force in the area. These resolutions were not adopted because of the negative votes cast by two permanent members of the Council, the United Kingdom and France. Meanwhile, the Anglo-French ultimatum was rejected, and British and French forces intervened militarily. On 31 October, the Security Council adopted a resolution submitted by Yugoslavia, which recited that the lack of unanimity of the permanent members had prevented the Council from exercising its responsibility for the maintenance of international peace, and called an emergency special session of the General Assembly pursuant to General Assembly Resolution 377 (V) (“Uniting for Peace"). The General Assembly convened on 1 November. Early the following morning, it adopted a resolution urging that "all States" immediately cease fire, withdraw behind the armistice lines, cease border raids, observe scrupulously the armistice agreement, and halt the movement of military forces into the area. It also called for reopening of the then blocked Suez Canal. U.N. Doc. No. A/RES/997 (ES-I) (1956). On 3 November, the Secretary-General reported that Egypt and Israel were prepared to accept a cease-fire. He later reported that the United Kingdom and France appeared willing to stop military action provided that, among other things, the Egyptian and Israeli Governments agreed to accept a United Nations force capable of achieving the objectives of the cease-fire resolution. On 4 November, the General Assembly reiterated its resolution of 2 November. Then, by a vote of 57 in favor, 0 opposed, with 19 abstentions, the Assembly adopted a Canadian resolution requesting the 86138-62- -40 |