anism of that Organization whose primary purpose is the maintenance of international peace and security.

I shall not devote much time to the question whether, once we are satisfied that the procedures of Article 43 are not themselves exclusive, the Security Council nevertheless has the sole right to maintain armed forces for peace-keeping operations to the exclusion of the General Assembly. The Charter provisions are plain. The Security Council's responsibility for the maintenance of peace and security is "primary", not exclusive. The General Assembly, under Articles 10 and 11, has full authority to make recommendations on questions relating to the maintenance of international peace and security. There are only two exceptions. It may not consider such questions while the Security Council is itself so engaged and it must refer to the Council those questions on which "action" is required that is to say, action pursuant to decisions binding the Members, which the Security Council alone can take. Neither of these exceptions applies to recommendations for the contribution of forces and for their use with the consent of the States concerned, where, as with UNEF, the Security Council is not seized of the matter at the time the resolution is adopted.

For the establishment of an armed force at the call of the Security Council, in accordance with its binding decisions, Article 43 provides the only procedure, true. But the Court will search the Charter in vain to find any prohibition against voluntary use of armed force upon the recommendation of either the Council or the Assembly, and with the consent or at the request of nations whose security is threatened. And the Court will be slow to rule that, in adding to the arsenal of powers available to the United Nations the supreme power to order mandatory application of military force, the framers of the Charter withdrew or restricted well-known powers of a lesser character based on the consent of all interested parties.

This leads us to the second argument against the validity of the underlying resolutions of the General Assembly and the Security Council establishing the forces in question-an argument, on the surface, less sweeping than the one we have just considered. The argument grants that the United Nations could, either through the Security Council or the General Assembly, recommend that Member States contribute forces for the use of the Organization. But how, it asks, can the Organization compel a Member to pay for the expenses of forces that it could not compel that Member to contribute? Voluntary forces, it concludes, must be financed by voluntary contributions.

This is basically the argument put forth in the letter to the Court from the Government of the French Republic. Quoting its representative in the General Assembly debate on the Advisory Opinion Resolution, the letter says:

Firstly, the General Assembly has not the right, merely by voting on a budget, to extend the competence of the United Nations;

Secondly, in the case of any United Nations organ, the power to make recommendations to Member States is not sufficient to impose upon them any form of obligation.

Thirdly, the legal power to make recommendations to Member States does not include permission to create, by the circuitous method of a direction addressed to the Secretary General any obligations for the States. (p. 75)

...

But the argument proves too much. Carried to its logical conclusion, it would mean that the Organization could not compel its Mem

bers to pay for anything, except expenditures flowing from binding decisions of the Security Council. With the exception of such decisions, all actions of the Organization are either recommendations to the Member States or directions to the Secretary-General or other subsidiary organs; and, in the French view, these cannot give rise to binding financial obligations. The French submission recognizes that such a conclusion is untenable. Thus, it is led to assert the distinction between administrative and operational expenses which, as appears elsewhere, is unwarranted in the language or history of the Charter and would be unworkable in practice.

More fundamentally, in my view, the French argument puts the case the wrong way. The United Nations can pay for what it is empowered to do. If it can accept volunteers, it can defray the financial obligations generated by the activities of those volunteers.

In the case before the Court, the fact that the United Nations could not compel Members to contribute contingents to an international force is beside the point. It was not obliged to appeal to States for such contingents. This was a convenient way to proceed, but not the only way. The Assembly might have chosen to raise the force by direct recruitment. To do so, it might have needed the consent of individual States to pursue recruiting activities on their soil, or with respect to their nationals; and it would have needed the consent of the States on whose soil the recruits were to be housed, trained or used. But 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. Indeed, just this process was contemplated for the establishment of the proposed United Nations Guard to which I have referred.

Member States do not find their protection against such action— if protection is needed-in legal strictures of the Charter, but in the political requirement of a two-thirds majority in the General Assembly both to initiate the action and to make the necessary financial arrangements. If these majorities can be mustered; if the activities engaged in are immediately related to the express purposes of the United Nations; if they are approved in due course according to the regular procedures of one of its organs having competence over the subject matter; if they do not contravene any prohibition of the Charter nor invade the sovereign powers of individual States-if conditions such as these are satisfied, I can perceive no reason why the United Nations should be prohibited from levying assessments to pay for goods and services needed for those activities. The goods and services may be furnished by States Members. Often they will be furnished by private agencies or individuals. In neither case could the United Nations require that they be made available. But I do not see why, in either case, this should militate against the Organization's power to raise money by assessment to pay for them.

Thus, in my view, the French argument falls to the ground. 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.

If any inquiry at all is to be permitted into the validity of the underlying resolutions establishing UNEF and ONUC, it must be directed to the substantive question: what can the United Nations do? What it can do, it can finance under the provisions of Article 17.

Mr. President, Members of the Court: The framers of the Charter and the people of the nations adopting it resolved together "to save succeeding generations from the scourge of war". They named the first object of their efforts: to maintain international peace and security. This Court in deciding this case will also decide, in large measure, whether they succeeded.

Mr. Justice Oliver Wendell Holmes said in a great case on the treaty power under the United States Constitution:

when we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; . The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago. (Missouri v. Holland, 252 U.S. 430, 433 (1920). The question before the Court must be addressed in the light of the whole experience of the United Nations Organization. What is that experience?

The innovation of the Charter, the power of the Organization acting through the Security Council to compel the contribution of military forces for military action against aggressors, this innovation was stillborn. If it had been the only method available to the Organization for using armed forces to meet threats to the peace, it may be said with some confidence that the worst of such threats would have remained unmet, and the Organization might now be in the same state as was the League of Nations fifteen years after its establishment.

Instead, however, a power that was available to the League, the power to take voluntary collective measures using troops of Member States as instruments in appropriate cases, that power took on a new vitality in dealing with the kind of threats to the peace we have had in the post-war world. By discriminating but imaginative use of this power, through 15 years and under 3 Secretaries-General, the Organization has been able to carry out its first purpose, to keep the peace. In Palestine and Kashmir, on the Gaza strip, in Lebanon, and now in the Congo, armed contingents contributed voluntarily by their own Governments and acting with the consent of all States concerned have operated successfully under the flag and the command of the United Nations to safeguard international peace and security. In Korea, a United Nations force of national contingents, furnished without the compulsion of a Security Council decision, fought successfully to restore the situation as it existed before hostilities began.

The Court is asked to ignore this history, to strike down the one method by which experience has shown the United Nations can effectively summon military forces to deal with threats of aggression and breaches of the peace. The Soviet argument would reject this method out of hand. It would confine the Organization exclusively to the Chapter VII procedures which experience so far has shown to be sterile and useless. The French submission would accomplish the same result, not by prohibiting entirely the establishment and opera

tion of United Nations forces outside the purview of Chapter VII, but by cutting off the possibility of financing such forces through assessments under Article 17. I said a moment ago that what the United Nations can do, it can pay for. The converse is also truewhat it cannot pay for, it cannot do. The French position, equally with the Soviet, would bring to an end the use of United Nations forces for peace-keeping missions.

Mr. President, Members of the Court, if I may be permitted to refer again to the court I know best, the Supreme Court of my own country, it is, like this one, a custodian of a great charter granting and allocating political power to be exercised in pursuit of large purposes.

One of the early historic cases to come before that Court was McCulloch v. Maryland. That case too concerned the fiscal power granted by the Constitution to the entity which it had created. The question was whether the Federal Government had power to incorporate a central bank-to establish a subsidiary organ-when neither the power to incorporate nor the power to engage in banking were expressly granted in the words of the Constitution.

Chief Justice Marshall, the first great Chief Justice, wrote the decision in that case. He said:

A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would, probably, never be understood by the public. Its nature, therefore, requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects, be deduced from the nature of the objects themselves. In considering this question, then, we must never forget, that it is a constitution we are expounding. (3 Wheaton 406 (1819).)

This injunction-we must never forget it is a constitution we are expounding-is classic in American jurisprudence. It is, indeed, as the Attorney-General of Ireland remarked the other day, a general principle of law recognized by civilized nations. The principle found expression in the jurisprudence of this Court when it said:

Under international law, the Organization must be deemed to have those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties. (Reparations for Injuries Suffered in the Service of the United Nations, I.C.J. Reports 1949, pp. 174, 182).

The Court needs no reminder that it is dealing with a constitutive instrument, regulating, within its scope, important relations among men and nations, meant to endure for many years, designed to promote great ends and intended to grant powers adequate to serve the purposes for which it was established. The constitution we are expounding here must contain within it the authority to mount and support the actions by which, in the years since its adoption, the United Nations has successfully defended a precarious peace.

It remains only to thank you, Mr. President, and Members of the Court, for myself and, if I may, on behalf of my colleagues. for the patience and courtesy with which you have heard us.

APPENDIX E

(The following statements have been submitted for inclusion in the record:)

Dr. THOMAS E. MORGAN,

Chairman, House Foreign Affairs Committee,
Capitol Building, Washington, D.C.

NEW YORK, N.Y., June 6, 1962.

DEAR CONGRESSMAN MORGAN: As chairman of the meeting which took place at town hall, New York City, May 24, 1962, I have been instructed to forward to you the following resolution which we request to be read into the minutes of the hearings on United Nations bond issue legislation.

"We believe that we speak for the vast majority of not only New Yorkers but Americans throughout the country when we say that the issue is clear: The basic principles of the United Nations must be supported as the rule of law is the only guide in a civilized society. The alternative results would be chaos with a disastrous increase in world tension. We not only speak for ourselves but for our organizations, each of which has either in full membership meetings or at executive sessions voted unanimously to support the administration request for passage of the United Nations bond issue legislation for the full amount of $100 million. "Signed by: Charles Cogen, President, American Federation of Teachers Local 2, AFL-CIO; Frank E. G. Weil, Regional Vice Chairman, American Veterans' Committee; Morton Bahr, Area Director, Communication Workers of America; Charles Kinsolding, District Leader, Murray Hill Citizens First A. D. North Regular Democratic Club; Woody Kingman, President, the Ninth A. D. Republican Club; Anthony Mazzocchi, Oil, Chemical and Atomic Workers International Union, Local 8149; David Livingston, President, Retail Wholesale Department Store Union, District 65; Jerry Wurf, Executive Director, District Council 37, State, County, and Municipal Employees; Jack Casey, Jr., Commander, the Willard Straight Post No. 842, American Legion; Arthur I. Blaustein, Executive Director, United World Federalists, New York." ARTHUR I. BLAUSTEIN,

Hon. THOMAS E. MORGAN,

Executive Director, United World Federalists,
New York Metropolitan Area.

AMERICAN FEDERATION OF LABOR AND
CONGRESS OF INDUSTRIAL ORGANIZATIONS,
Washington, D.C., July 3, 1962.

Chairman, House Foreign Affairs Committee,
House Office Building, Washington, D.C.

DEAR CHAIRMAN MORGAN: The fundamental rights so eloquently expressed at the founding of the United Nations in 1945 are of the deepest concern to trade unionists who cherish freedom and democracy. The maintenance of a strong and effective U.N. is imperative if these rights are to be preserved and extended to all the peoples of the world.

Recent Soviet Union attempts to sap the power and paralyze the effectiveness of the U.N. illustrate the urgent need for renewed vigor in U.S. support.

The AFL-CIO enthusiastically endorses S. 2768 which provides the authorization for purchase of U.N. bonds. Not only does this bill indicate continuing support for the U.N. principles, but also for the preservation and promotion of the U.N. as an effective working body.

We strongly urge your committee to report out this bill and to lead the House in passing S. 2768 with an overwhelming majority.