Indeed, Article 10 is even broader, providing:

The General Assembly may discuss any questions or any matters within the scope of the present Charter or relating to the powers and functions of any organs provided for in the present Charter. (Emphasis added.)

...

The same article authorizes the Assembly to "make recommendations to the Members . . . on any such questions or matters."

The sole limitation on this power is specified in Article 12 which precludes the Assembly from making recommendations with regard to any dispute, "While the Security Council is exercising . . the functions assigned to it in the present Charter" with respect to that dispute. It is not contended and could not be contended that the exception is applicable in this instance.

Nor does the last sentence of Article 11(2) operate to limit the Assembly's power in this situation. That sentence specifies that any question relating to the maintenance of international peace and security "on which action is necessary shall be referred to the Security Council by the General Assembly either before or after discussion. Paragraph 4 of Article 11 states expressly that that Article is complementary to rather than a limitation upon Article 10. Accordingly, the sentence in question can only be read as requiring reference to the Security Council where, in the judgment of the General Assembly, the dispute cannot be dealt with by a resolution of the Assembly but would require action of a mandatory character, and therefore a decision of the Security Council. Both as to UNEF and ONUC, the constitutive resolutions, insofar as they are directed to Member States, are essentially recommendatory in character. The contributions of troops and supporting equipment are voluntary. The presence of those forces in the field is with the consent of the host countries. U.N. Gen. Ass. Off. Rec. 13th Sess., Annexes, Agenda Item No. 65 at 8, (A/3943) (1958), U.N. Security Council Off. Rec. 15th year, 873d meeting 5 (S/PV.873) (.960).

IV. CONTRARY CONTENTIONS ADVANCED IN DISCUSSIONS OF THE GENERAL ASSEMBLY AND ITS SUBORDINATE ORGANS ARE UNPERSUASIVE

In the course of United Nations debates, a minority of Members have advanced miscellaneous arguments against the legally binding character of the assessments which have been levied to finance UNEF and ONUC. Some of these arguments have been dealt with above. It may be useful at this juncture, however, to summarize and dispose of these contentions.

(1) It has been said that UNEF and ONUC assessments are distinct from the "regular" United Nations budget and that, accordingly, they fall outside the mandatory scope of Article 17 (2).

To recapitulate what has been said above, first, UNEF and ONUC assessments, while not part of the so-called "regular" budget, are part of the budget of the Organization. They are simply distinct accounts of that budget established for accounting convenience. They are as much "expenses of the Organization" as is the Working Capital Fund which is also assessed by special resolution, apart from the "regular" budget. Second, the resolutions appropriating funds for UNEF and ONUC prescribe, in the case of UNEF, that its expenses

"shall be borne by the United Nations," and, in the case of ONUC, explicitly recognize that its expenses are "expenses of the Organization" within the meaning of Article 17.

(2) A second argument against the binding character of the assessments in question is this: The Assembly, it is said, is not authorized to adopt binding decisions. It may only adopt recommendations. Recommendations lack legally binding force. Accordingly, it is contended, the Assembly cannot adopt binding assessment resolutions to finance recommendations that are not binding.

In reply, it should first be noted that the General Assembly is authorized to adopt binding resolutions in some spheres. A resolution of the General Assembly admitting, suspending, or expelling a Member is binding. A resolution of the General Assembly electing a member of the Security Council or other Councils is binding. A resolution of the General Assembly appointing the Secretary-General is binding. A resolution of the General Assembly giving directions to the Secretary-General is binding. Most pertinently, budgetary resolutions of the General Assembly are binding, as the mandatory language of Article 17 (2) demonstrates. As one commentator has put it: Perhaps the most important group of resolutions [that have binding force] falling within this first category of specifically enumerated powers are those authorized under Article 17 of the Charter which establishes the General Assembly as the financial authority of the United Nations with the power to consider and approve the budget of the Organization and apportion expenses among the Member states. Resolutions adopted within the purview of this Article not only create obligations binding upon Member states, but are sanctioned by the denial of the right to vote in the General Assembly to a Member which is in arrears in the payment of its financial contributions. Authority over the budget, in addition, offers to the General Assembly the possibility of effective control over the activities of the Organization. Sloan, The Binding Force of a "Recommendation" of the General Assembly of the United Nations, 25 Brit. Yb. Int'l L. 1, 4–5, (1948). (Footnote omitted.)

Second, the budgetary provisions of the Charter make no distinction between expenses occasioned by recommendatory resolutions and other expenses. In pursuance of Article 17, the Assembly has regularly approved items in its budget to finance recommendatory resolutions. If the United Nations lacked that authority, it is difficult to see how most of its customary activity under the Charter could be supported. (3) A third argument has been put in the form of the following syllogism which purports to demonstrate that expenses arising from UNEF and ONUC are not "expenses of the Organization" within the meaning of Article 17 (2) :

(a) All "expenses of the Organization" within the meaning of Article 17 (2) are subject to the sanction provided for in Article 19. (b) Expenditures such as those arising from UNEF and ONUC were excluded by the San Francisco Conference from the sanction provided by Article 19.

(c) Accordingly, these expenditures are not "expenses of the Organization" within the meaning of Article 17 (2).

The syllogism fails because its minor premise is wholly erroneous. The sole support for this premise is an amendment introduced by Australia in Committee II/1 at the San Francisco Conference, which read:

A member shall have no vote if it has not carried out its obligations as set forth in Chapter VIII, Section B, paragraph 5 [of the Dumbarton Oaks proposals]. Doc. No. 808, II/1/34, 8 U.N. Conf. Int'l Org. Docs. 470 (1945).

Chapter VIII, Section B, paragraph 5 corresponds to Article 43 of the Charter. Committee II/1 postponed discussion of the Australian amendment and the amendment was later withdrawn. The syllogism presupposes that it was the function of Chapter VIII, Section B, paragraph 5 (now Article 43 of the Charter) to provide for the financing of such operations as UNEF and ONUC. In fact, Article 43 serves no such function. That article calls on Members of the United Nations

to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security.

The Australian amendment was, in reality, an attempt to extend the sanction which Article 19 provided for the failure of a State to meet its financial obligations to a wholly different area, namely, the failure of a State to meet the obligations imposed on it by an agreement under Article 43.

Moreover, the syllogism depends, for its efficacy, on the assumption that the failure to act on the Australian amendment, and its subsequent withdrawal, was tantamount to a rejection of the amendment. But the assumption is unsound. The unexplained withdrawal of an amendment, without action having been taken on it, does not give rise to any inference as to the meaning of the text adopted.

Lastly, it should be noted that the Government of Australia has officially affirmed that its position at San Francisco was that all United Nations expenses arising out of decisions of United Nations. organs were to be borne by the Members, and created binding obligations upon them. U.N. Gen. Ass. Off. Rec. 15th Sess., Fifth Comm. 60 (A/C.5/839) (1961).

(4) Still another argument that has been advanced in opposition to the binding character of UNEF and ONUC expenses is that, in the case of UNEF, its costs should be met by the so-called "aggressors," and, in the case of ONUC, by parties having a particular interest in the Congo.

The reply to this argument is plain. The Charter provides that the expenses of the Organization "shall be borne by the Members as apportioned by the General Assembly." The language contemplates a policy judgment by the Assembly. Arguments as to the considerations bearing on that judgment, therefore, should be addressed to the Assembly and not to this Court.

(5) One last argument may be recapitulated and rebutted. It is that UNEF and ONUC represent "action" for the maintenance of international peace and security which is exclusively within the competence of the Security Council under Articles 11, 43, and 48; that the General Assembly lacks competence in the sphere of peace and security; that the financial procedures of the United Nations must conform to this alleged distribution of substantive powers; and that, consequently, the authority of the General Assembly under Article 17 (2) does not extend to the financing of such operations.

To this contention there are three answers. First, the Security Council does not have exclusive competence in the field of maintaining peace and security. Article 11(2) expressly gives the General As

sembly power to discuss questions and make recommendations in this field. The reference in the last sentence of Article 11(2) is to "action" having mandatory force, if and when such action is needed, as determined by the General Assembly. No such "action" is involved in these cases. Second, as has also been shown above, the establishment of UNEF by the General Assembly and the directions given to ONUC by the Assembly are within the Assembly's powers. Accordingly, their financing is within the Assembly's power. Third, while the right of the Security Council to make decisions under Articles 43 and 48 is unquestioned, once the Council has taken a valid decision under these or any other articles which gives rise to financial obligations, these costs are "expenses of the Organization" within the meaning of Article 17 (2). Accordingly, they must be approved and apportioned by the General Assembly.

CONCLUSION

For the reasons advanced in this statement, the Government of the United States of America respectfully submits that the expenditures authorized in the resolutions of the General Assembly enumerated in the question submitted to the Court "constitute 'expenses of the Organization' within the meaning of Article 17, paragraph 2, of the Charter of the United Nations."