APPENDIX D

ORAL STATEMENT BY ABRAM CHAYES, LEGAL ADVISER, DEPARTMENT OF STATE, UNITED STATES OF AMERICA,1 TO THE INTERNATIONAL COURT OF JUSTICE ON THE FINANCIAL OBLIGATIONS OF MEMBERS OF THE UNITED NATIONS

May it please the Court: The issue before the Court is whether the United Nations has legal authority to raise funds for the accomplishment of its paramount purpose, the maintenance of international peace and security.

It has been rightly said here that the question upon which the General Assembly has asked your advice is a precise and limited one. Nevertheless, its answer requires a consideration of fundamental questions of the distribution of powers within the United Nations. It has profound implications for the capacity of the Organization to survive and to realize its aims. In the view of the Government of the United States, no more important question has ever been before the International Court.

The importance of the case is witnessed by the number of Governments that have taken advantage of the opportunity under the Statute of the Court to submit views in writing and orally on the questions at issue. The Court has had the benefit of written statements on both sides of the question from 18 Governments and has, in the last 10 days, heard oral arguments, also, I am glad to say, on both sides of the question, from 8 Governments.

At this stage, there is little to be added by way of detailed exegesis to what distinguished counsel have already said. Certain remarks have been made in the course of the argument before you calling into question the conduct and the good faith of Governments represented here (including my own) and of some that are not. I reject those remarks, but I do not propose to respond to them. This is not a place where political recriminations, unfortunately common in other forums, should properly be rehashed. And such remarks are, of course, wholly irrelevant to the issues in this case. What may be useful now is to restate the essential structure of the case for an affirmative answer to the Assembly's question, and to respond to the major thrusts that have been made against that case.

The argument for an affirmative answer is straight forward. There is only one Article in the Charter dealing with financial obligations of Members, Article 17, paragraph 2. It provides: "The expenses of the Organization shall be borne by the Members as apportioned by the General Assembly". It vests in the Organization the power, by resolu

1 Made before the International Court of Justice at The Hague on May 21.

2 U.N. doc. A/RES/1731 (XVI).

tion of the General Assembly apportioning and assessing expenses, to require Member States to pay charges lawfully incurred. This is the meaning, and the whole meaning, of Article 17. It is the plain meaning of the text; it coincides with the intention of the framers of the Charter evidenced in the preparatory work; it is reinforced by the unbroken practice of the Organization under the Charter. It reflects, as a Committee of Jurists said in construing the parallel Article of the League of Nations Covenant, "the general principle, a principle applicable to all associations, that legally incurred expenses of an association must be borne by all its Members in common". (Contribution of the State of Salvador to the Expenses of the League, A. 128.1922. V., p. 193.)

The contention has been advanced that the term "expenses", despite its generality, must be read to mean some expenses rather than all expenses, "administrative" expenses as opposed to "operational" expenses, "normal" expenses in contrast with "extraordinary" expenses. These distinctions cannot be sustained. They are without support in the text of the Charter, in the San Francisco discussions, or in the experience of the United Nations. They cannot be applied coherently in practice. If adopted, they would lead to doubt and confusion about the financial obligations of Members, a field in which, more than most, clarity and certainty are needed for the effective functioning of the Organization. These points have been developed persuasively and in detail by others. May I simply add to the references already before the Court the Note of the Controller in the dossier prepared by the Secretary-General. This Note shows, among other things, that the Working Capital Fund of the United Nations, though not a part of the "regular" budget and though used to meet "extraordinary" expenditures, notably those for peacekeeping "operations", has been consistently provided for by assessment against the Members under Article 17. (Note by the Controller on Budgetary and Financial Practice of the United Nations, pp. 9-10, 25.)

The meaning of Article 17, paragraph 2, then, is this: The United Nations has the power, by resolution of the General Assembly apportioning and assessing expenses, to require the Member States to pay for expenditures lawfully made. I think there can be no doubt that that power was exercised in the resolutions levying assessments to cover the expenditures for the Middle East and Congo Forces. It is true that, on occasion, these expenditures were characterized as "extraordinary", that assessments to cover them were not made in the regular budget, that they were charged against an ad hoc or special account. On the basis of these factors, it has been suggested to the Court that the General Assembly was not acting to impose the obligation of payment upon Member States for the assessments made in the resolutions.

Direct expressions to the contrary are many and weighty and have been cited to the Court. But put these aside. Read the financing resolutions together, one after the other. Read especially the operative portions rather than the preambular material. Consider the form in which they are stated, the sharpness of the distinction they make between the voluntary contributions they solicit and the assessments they exact. See the concern they show for the burden upon poorer Members caused by the financial obligations imposed. All this

is utterly at odds with the notion that the Assembly did not intend to exercise its power to impose binding assessments. On the other hand, all of the circumstances adduced in support of that notion can be, and have been, explained in terms that are fully consistent with the intention of the Assembly to exercise its power to bind.

If the Assembly has power under Article 17 to impose binding financial obligations for all expenditures lawfully incurred, and if it is granted that the Assembly intended to exercise that power, then the only argument that remains against the binding character of the assessments is that they were not levied to cover expenditures lawfully incurred.

A review of the written and oral arguments for a negative answer to the question before the Court reveals that the main thrust of these submissions is indeed directed at the legality of the expenditures themselves; the legality, that is, of the activities giving rise to them. To what extent, if any, is this question of lawfulness open, assuming. as I think everyone does, that there is no doubt about the formal regularity of the assessing resolutions?

A number of my colleagues have taken the position that the Court need not and should not inquire into the validity of the underlying resolutions establishing and regulating the Congo and Middle East Forces, except, perhaps, to assure itself that these resolutions are not "manifestly invalid". They point to the language of the resolution putting the question to the Court, and to the debates preceding its adoption, as showing an intention that the Court's inquiry should confine itself to the legal effect of the assessing resolutions alone.

The United States is in full agreement with this position. Certainly, the Assembly had no desire to cast doubt on the validity of its own actions over a five year period. The Court can, in my view, decide this case without an investigation into the power of the Assembly and the Security Council, under the Charter, to adopt the resolutions establishing and governing the Congo and Middle East Forces. If it can do so, it is bound to do so, both by the terms of the resolution putting the question and on general principles of constitutional adjudication which prescribe that issues of constitutional power should be passed upon only when that is essential to the decision of the case.

The first way by which to avoid considering the validity of the underlying resolutions is simply to assume that they are valid. The Assembly has the right to define its questions as it chooses, so long as the limitation does not stultify the Court's processes. If it does not wish its actions called in question, it may ask the Court to consider the effect of the assessing resolutions on the assumption that the underlying resolutions are valid. The Court should accept that assumption, at least where it does not do violence to common sense or to the Court's own sense of the requirements of adjudication. In this case, the assumption of validity is far from being absurd or farfetched or patently untenable. Quite the reverse. It is the argument against validity which is fine-spun, and relies on subtle and attenuated argumentation, elaborating limitations, supposedly implied or inherent, upon powers expressly granted. In these circumstances, the Court need not review the Assembly's own considered judgment that its actions were lawful, a judgment expressed initially when the forces were constituted, a judgment reiterated as questions of

their mission or financial support came before the Assembly, and a judgment stated finally by the precision with which the Assembly formulated its question to the Court.

Secondly, in a sense, the question of validity is logically irrelevant to the decision the Court must make. Suppose, for the sake of argument, that this Court, or some other authoritative organ, were now to determine that the resolutions establishing UNEF [United Nations Emergency Forces] and ONUC [Organisation des Nations Unies au Congo] were "unconstitutional". The decision could not erase the fact that UNEF and ONUC had existed. They existed by virtue of resolutions adopted without dissenting votes. These resolutions are themselves interpretations of the Charter holding that the actions taken are within the powers granted to the organ adopting the resolution. Until they are authoritatively set aside, persons or States dealing with the Organization in respect of matters covered by the resolutions were entitled to regard them as valid and effective, at least in the absence of an important irregularity in the procedure by which they were adopted or a substantive invalidity so patent as to amount to a manifest usurpation. If, acting pursuant to such resolutions, the Secretary-General entered into obligations committing the United Nations to pay for goods or services furnished by Member States or private persons, those obligations are binding in law upon the United Nations as an organization. It was legally obliged to repay them. And this Court has said, as to expenditures arising out of "obligations already incurred by the Organization":

. . . the General Assembly has no alternative but to honour these engagements.

I refer to the case The Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, I.C.J. Reports 1954, pp. 47, 59.

On this line of reasoning, I believe the Court may give an affirmative answer to the question put to it by the General Assembly without examining the substantive validity of the resolutions by which the Congo and Middle East Forces were created, at least insofar as those assessments are required to cover existing contractual obligations of the Organization to pay money for goods and services furnished. Since the United Nations deficit is estimated at $170 million as of 30 June 1962, while the arrearages on assessments levied under the resolutions before the Court are at most only $150 million, this analysis would lead to an affirmative answer as to all past assessing resolutions.

As I understand them, the submissions of the Governments of the Netherlands, the United Kingdom and Ireland upon this point do not differ substantially from the arguments I have just made.

Let me repeat. In the words of the Attorney-General of Ireland,

the Court is not compelled to concern itself with the question of validity and can answer the question on which advice is sought without investigating this issue.

I submit that it should do so.

But if the Court itself should conclude that it must examine the validity of the underlying resolutions in order to arrive at an answer to the question put by the Assembly, then, in my view, the resolution putting the question does not preclude such an inquiry. The written

statement of the Government of France seems to say otherwise: I quote from page 74 of the booklet of printed statements—

the question put to the Court does not enable the latter to give a clearcut opinion on the judicial basis for the financial obligations of Member States or on the United Nations constitutional problems underlying them.

And the statement concludes, at pages 78-79:

To sum up, the Government of the French Republic considers that the circumstances in which the Court has been consulted are not such as to make it possible to obtain the legal opinion which is considered necessary.

This, in my submission, cannot be so. The Assembly wanted advice on its question. It 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. This was expressly stated in the debates before the adoption of the resolution. The representative of the United States said in the Fifth Committee consideration of the resolution—and I quote now from the Official Records, General Assembly, 16th Session, Fifth Committee, 879th Meeting, pp. 292–293:

It was the sponsors' intention that the Court should consider the question exhaustively and in all its aspects.

The representative of the United Kingdom added in Plenary Session of the Assembly-again I quote from the 16th Session of the General Assembly, Provisional Verbatim Record, 1086 Plenary Meeting, A/PV 1086, at page 62:

the International Court, in considering the question which was formulated in the draft resolution recommended by the Fifth Committee, will undoubtedly be able to take into consideration all relative provisions of the Charter. Furthermore, it will of course be open, under the Statute of the Court, to any Member State that wishes to do so to submit to the Court its views on the conformity with the Charter of the decisions taken in regard to the expenditures referred to in the draft resolution.

On this basis, the Assembly accepted the resolution as reported from the Fifth Committee and rejected a French amendment that would have broadened the statement of the question.

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.

Now may I digress here for a moment to deal with another challenge to the Court's competence. The South African Government contends that, and I quote from page 216 of the printed volume:

... the whole question submitted for an advisory opinion could only be answered if the Court is fully informed as to the causa of the expenditures authorized by the relative General Assembly resolutions.

The short answer to this is that the question put to the Court deals only with "expenditures authorized in the General Assembly resolutions...". Those resolutions cannot be taken to have authorized expenditures for activities outside the terms of the basic resolutions establishing and governing the forces.

Since there may be circumstances in which the validity of the underlying resolutions might be considered by this Court, and since certain governments have argued the matter at length, let me address myself to their principal contentions.