INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CERTAIN EXPENSES
OF THE UNITED NATIONS
(ARTICLE 17, PARAGRAPH 2, OF THE CHARTER)

ADVISORY OPINION OF 20 JULY 1962

1962

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

CERTAINES DÉPENSES
DES NATIONS UNIES |
(ART ICLE 17, PARAGRAPHE 2, DE LA CHARTE)

AVIS CONSULTATIF DU 20 JUILLET 1962
This Opinion should be cited as follows:
“Certain expenses of the United Nations (Article 17, paragraph 2,
of the Charter), Advisory Opinion of 20 July 1962:
I.C.J. Reports 1962, p. 151.”

Le présent avis doit étre cité comme suit:

«Certaines dépenses des Nations Unies (article 17, paragraphe 2,
de la Charte), Avis consuliatif du 20 juillet 1962 :
C.I. J. Recueil 1962, p. 151.»

Sales number 262
N° de vente: À

1962
20 July
General List
No. 49

151

INTERNATIONAL COURT OF JUSTICE

YEAR 1962
20 July 1962

CERTAIN EXPENSES OF THE
UNITED NATIONS

(ARTICLE 17, PARAGRAPH 2, OF THE CHARTER)

Resolution 1731 (XVI) of General Assembly requesting advisory
opinion.—Objections to giving opinion based on proceedings in Gen-
eral Assembly.—Interpretation of meaning of ‘‘expenses of the
Organization’ —Article 17, paragraphs I and 2, of Charter.—Lack of
justification for limiting terms “budget” and “expenses” —Article 17
in context of Charter.—Respective functions of Security Council and
General Assembly.— Article 11, paragraph 2, in relation to budgetary
powers of General Assembly.—Role of General Assembly in maintenance
of international peace and security.—Agreements under Article 43.—
Expenses incurred for purposes of United Nations.—Obligations
incurred by Secretary-General acting under authority of Security
Council or General Assembly.—Nature of operations of UNEF and
ONUC.—Financing of UNEF and ONUC based on Article 17,
paragraph 2.—Implementation by Secretary-General of Security
Council resolutions Expenditures for UNEF and ONUC and
Article 17, paragraph 2, of Charter.

ADVISORY OPINION

Present: President WINIARSKI; Vice-President ALFARO; Judges

BASDEVANT, BADAWI, MORENO QUINTANA, WELLINGTON
Koo, SprROPOULos, Sir Percy SPENDER, Sir Gerald Fitz-
MAURICE, KORETSKY, TANAKA, BUSTAMANTE Y RIVERO,
Jessup, MoRELLI; Registrar GARNIER-COIGNET.
152 CERTAIN EXPENSES OF U.N. {OPINION OF 20 VII 62)

Concerning the question whether certain expenditures authorized
by the General Assembly ‘‘constitute ‘expenses of the Organization’
within the meaning of Article 17, paragraph 2, of the Charter of
the United Nations”,

THE CouRT,

composed as above,
gives the following Advisory Opinion :

The request which laid the matter before the Court was formu-
lated in a letter dated 21 December 1961 from the Acting Secre-
tary-General of the United Nations to the President of the Court,
received in the Registry on 27 December. In that letter the Acting
Secretary-General informed the President of the Court that the
General Assembly, by a resolution adopted on 20 December 1961,
had decided to request the International Court of Justice to give
an advisory opinion on the following question:

‘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 10967 and 1633 (XVI) of 30 Oc-
tober 1961 relating to the United Nations operations in the Congo
undertaken in pursuance of the Security Council resolutions of
14 July, 22 July and g August 1960, and 21 February and 24 No-
vember 1961, and General Assembly resolutions 1474 (ES-IV) of
20 September 1960 and 1599 (XV), 1600 (XV) and r60r (XV) of
15 April 1961, and the expenditures authorized in General Assembly

+ resolutions 1122 (XI) of 26 November 1956, 1089 (XI) of 21 Decem-
ber 1956, 1090 (XI) of 27 February 1957, 1151 (XII) of 22 Novem-
ber 1957, 1204 (XII) of 13 December 1957, 1337 (XIII) of 13 De-
cember 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, constitue ‘expenses of the
Organization’ within the meaning of Article 17, paragraph 2, of
the Charter of the United Nations?”

In the Acting Secretary-General’s letter was enclosed a certified
copy of the aforementioned resolution of the General Assembly.
At the same time the Acting Secretary-General announced that he
would transmit to the Court, in accordance with Article 65 of the
Statute, all documents likely to throw light upon the question.

Resolution 1731 (XVI) by which the General Assembly decided
to request an advisory opinion from the Court reads as follows:
“The General Assembly,

Recognizing its need for authoritative legal guidance as to obli-
gations of Member States under the Charter of the United Nations
153 CERTAIN EXPENSES OF U.N. (OPINION. OF 20 VII 62)

in the matter of financing the United Nations operations in the
Congo and in the Middle East,

1. Decides to submit the following question to the International
Court of Justice for an advisory opinion:

“Do the expenditures authorized in General Assembly reso-
lutions 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 g August 1960, and 21 Feb-
ruary and 24 November 1961, and Genera] Assembly resolutions
1474 (ES-IV) of 20 September 1960 and 1599 (XV), 1600 (XV)
and 16071 (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 Decem-
ber 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 909 (ES-I) of 4 November
1956, 1000 (ES-I) of 5 November 1956, 1007 (ES-I) of 7 Novem-
ber 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?”

2. Requests the Secretary-General, in accordance with Article 65
of the Statute of the International Court of Justice, to transmit
the present resolution to the Court, accompanied by all documents
likely to throw light upon the question.”

* * *

On 27 December 1061, the day the letter from the Acting Secre-
tarv-General of the United Nations reached the Registry, the Presi-
dent, in pursuance of Article 66, paragraph 2, of the Statute, con-
sidered that the States Members of the United Nations were
likely to be able to furnish information on the question and made
an Order fixing 20 February 1962 as the time-limit within which
the Court would be prepared to receive written statements from
them and the Registrar sent to them the special and direct communi-
cation provided for in that Article, recalling that resolution 1731
(XVI) and those referred to in the question submitted for opinion
were already in their possession.

The notice to all States entitled to appear before the Court of the
letter from the Acting Secretary-General and of the resolution
therein enclosed, prescribed by Article 66, paragraph 1, of the
Statute, was given by letter of 4 January 1962.

The following Members of the United Nations submitted state-
ments, notes or letters setting forth their views: Australia, Bulgaria,

6
154 CERTAIN EXPENSES OF U.N. (OPINION OF 20 VII 62)

Byelorussian Soviet Socialist Republic, Canada, Czechoslovakia,
Denmark, France, Ireland, Italy, Japan, Netherlands, Portugal,
Romania, South Africa, Spain, Ukrainian Soviet Socialist Repu-
blic, Union of Soviet Socialist Republics, United Kingdom of
Great Britain and Northern Ireland, United States of America and
Upper Volta. Copies of these communications were transmitted to
all Members of the United Nations and to the Acting Secretary-
General of the United Nations.

Mexico, the Philippines and Poland referred in letters to the
views expressed on their behalf during the session of the General
Assembly.

The Acting Secretary-General of the United Nations, in pur-
suance of Article 65, paragraph 2, of the Statute, transmitted to the
Court a dossier of documents likely to throw light upon the ques-
tion, together with an Introductory Note and a note by the Con-
troller on the budgetary and financial practices of the United
Nations; these documents reached the Registry on 21 February
and 1 March 1062.

The Members of the United Nations were informed on 23 March
1962 that the oral proceedings in this case would open towards
the beginning of May. On 16 April 1962 they were notified that
14 May had been fixed as the opening date. Hearings were held
from 14 to 19 May and on 21 May, the Court being addressed by
the following:

for Canada: M. Marcel Cadieux, Deputy Under-
Secretary and Legal Adviser for the
Department of External Affairs;
Professor W. Riphagen, Legal Adviser
to the Ministry of Foreign Affairs;

M. Riccardo Monaco, Professor at the
University of Rome, Head of Depart-
ment for Contentious Diplomatic Ques-
tions, Ministry of Foreign Affairs;

The Rt. Hon. Sir Reginald Manning-
ham-Buller, Q.C., Attorney-General;

for the Netherlands:

for Italy:

for the United Kingdom
of Great Britain and
Northern Ireland:

for Norway:

for Australia:
for Ireland:

for the Union of Soviet
Socialist Republics:

for the United States
of America:

7

Mr. Jens Evensen, Director-General,
Ministry of Foreign Affairs;

Sir Kenneth Bailey, Solicitor-General ;
Mr. Aindrias O’ Caoimh, S.C., Attorney-
General;

Professor G. I. Tunkin, Director of the
Juridical-Treaty Department of the
Ministry of Foreign Affairs;

The Honorable Abram Chayes, Legal
Adviser, Department of State.
155 CERTAIN EXPENSES OF U.N. (OPINION OF 20 VII 62)

*
* *

Before preceeding to give its opinion on the question put to it,
the Court considers it necessary to make the following preliminary
remarks:

The power of the Court to give an advisory opinion is derived
from Article 65 of the Statute. The power granted is of a discre-
tionary character. In exercising its discretion, the International
Court of Justice, like the Permanent Court of International Justice,
has always been guided by the principle which the Permanent Court
stated in the case concerning the Status of Eastern Carelia on 23 July
1923: ‘The Court, being a Court of Justice, cannot, even in giving
advisory opinions, depart from the essential rules guiding their
activity as a Court” (P.C.I.J., Series B, No. 5, p. 29). Therefore, and
in accordance with Article 65 of its Statute, the Court can give an
advisory opinion only on a legal question. If a question is not a
legal one, the Court has no discretion in the matter; it must decline
to give the opinion requested. But even if the question is a legal
one, which the Court is undoubtedly competent to answer, it may
nonetheless decline to do so. As this Court said in its Opinion of
30 March 1950, the permissive character of Article 65 ‘gives the
Court the power to examine whether the circumstances of the case
are of such a character as should lead it to decline to answer the
Request” (Interpretation of Peace Treaties with Bulgaria, Hungary
and Romania (First Phase), I.C.]. Reports 1950, p. 72). But, as the
Court also said in the same Opinion, “‘the reply of the Court, itself
an ‘organ of the United Nations’, represents its participation in the
activities of the Organization, and, in principle, should not be
refused” (2bid., p. 71). Still more emphatically, in its Opinion of
23 October 1956, the Court said that only ‘‘compelling reasons”
should lead it to refuse to give a requested advisory opinion (Judg-
ments of the Administrative Tribunal of the I.L.O. upon complaints
made against the Unesco, I.C.]. Reports 1956, p. 86).

The Court finds no “‘compeiling reason” why it should not give
the advisory opinion which the General Assembly requested by its
resolution 1731 (XVI). It has been argued that the question put
to the Court is intertwined with political questions, and that for
this reason the Court should refuse to give an opinion. It is true that
most interpretations of the Charter of the United Nations will have
political significance, great or small. In the nature of things it could
not be otherwise. The Court, however, cannot attribute a political
character to a request which invites it to undertake an essentially
judicial task, namely, the interpretation of a treaty provision.

In the preamble to the resolution requesting this opinion, the
General Assembly expressed its recognition of “‘its need for authori-
8
156 CERTAIN EXPENSES OF U.N. (OPINION OF 20 VII 62)

tative legal guidance”’. In its search for such guidance it has put to
the Court a legal question—a question of the interpretation of
Article 17, paragraph 2, of the Charter of the United Nations. In
its Opinion of 28 May 1948, the Court made it clear that as “the
principal judicial organ of the United Nations”, it was entitled to
exercise in regard to an article of the Charter, ‘a multilateral treaty,
an interpretative function which falls within the normal exercise
of its judicial powers’ (Conditions of Admission of a State to Member-
ship in the United Nations (Article 4 of the Charter), I.C.]. Reports
1947-1948, p. 61).

The Court, therefore, having been asked to give an advisory
opinion upon a concrete legal question, will proceed to give its
opinion.

*
* *

The question on which the Court is asked to give its opinion is
whether certain expenditures which were authorized by the General
Assembly to cover the costs of the United Nations operations in the
Congo (hereinafter referred to as ONUC) and of the operations of the
United Nations Emergency Force in the Middle East (hereinafter
referred to as UNEF), “constitute ‘expenses of the Organization’
within the meaning of Article 17, paragraph 2, of the Charter of the
United Nations”.

Before entering upon the detailed aspects of this question, the
Court will examine the view that it should take into consideration
the circumstance that at the 1086th Plenary Meeting of the General
Assembly on 20 December 1961, an amendment was proposed, by
the representative of France, to the draft resolution requesting
the advisory opinion, and that this amendment was rejected. The
amendment would have asked the Court to give an opinion on the
question whether the expenditures relating to the indicated opera-
tions were “decided on in conformity with the provisions of the
Charter”; if that question were answered in the affirmative, the
Court would have been asked to proceed to answer the question
which the resolution as adopted actually poses.

If the amendment had been adopted, the Court would have been
asked to consider whether the resolutions authorizing the expendt-
tures were decided on in conformity with the Charter; the French
amendment did not propose to ask the Court whether the resolutions
in pursuance of which the operations in the Middle East and in the
Congo were undertaken, were adopted in conformity with the
Charter.

The Court does not find it necessary to expound the extent to
which the proceedings of the General Assembly, antecedent to the
adoption of a resolution, should be taken into account in interpret-
ing that resolution, but it makes the following comments on the
argument based upon the rejection of the French amendment.

9
157 CERTAIN EXPENSES OF U.N. (OPINION OF 20 VII 62)

The rejection of the French amendment does not constitute a
directive to the Court to exclude from its consideration the question
whether certain expenditures were ‘decided on in conformity with
the Charter”, if the Court finds such consideration appropriate. It
is not to be assumed that the General Assembly would thus seek to
fetter or hamper the Court in.the discharge of its judicial functions;
the Court must have full liberty to consider all relevant data
available to it in forming an opinion on a question posed to it for
an advisory opinion. Nor can the Court agree that the rejection
of the French amendment has any bearing upon the question
whether the General Assembly sought to preclude the Court from
interpreting Article 17 in the light of other articles of the Charter,
that is, in the whole context of the treaty. If any deduction is to be
made from the debates on this point, the opposite conclusion would
be drawn from the clear statements of sponsoring delegations that
they took it for granted the Court would consider the Charter as a
whole.

*
* *

Turning to the question which has been posed, the Court observes
that it involves an interpretation of Article 17, paragraph 2, of the
Charter. On the previous occasions when the Court has had to
interpret the Charter of the United Nations, it has followed the
principles and rules applicable in general to the interpretation of
treaties, since it has recognized that the Charter is a multilateral
treaty, albeit a treaty having certain special characteristics. In
interpreting Article 4 of the Charter, the Court was led to consider
“the structure of the Charter’ and ‘“‘the relations established by it
between the General Assembly and the Security Council”; a com-
parable problem confronts the Court in the instant matter. The
Court sustained its interpretation of Article 4 by considering the
manner in which the organs concerned “have consistently inter-
preted the text” in their practice (Competence of the General Assem-
bly for the Admission of a State to the United Nations, I.C.]. Reports
1950, pp. 8-9).

The text of Article 17 is in part as follows:

“t. The General Assembly shall consider and approve the budget
of the Organization.

2. The expenses of the Organization shall be borne by the
Members as apportioned by the General Assembly.”

Although the Court will examine Article 17 in itself and in its
relation to the rest of the Charter, it should be noted that at least
three separate questions might arise in the interpretation of para-
graph 2 of this Article. One question is that of identifying what
are “the expenses of the Organization’; a second question might

10
158 CERTAIN EXPENSES OF U.N. (OPINION OF 20 VII 62)

concern apportionment by the General Assembly; while a third
question might involve the interpretation of the phrase “shall be
borne by the Members”. It is the second and third questions which
directly involve “the financial obligations of the Members”, but it
is only the first question which is posed by the request for the
advisory opinion. The question put to the Court has to do with a
moment logically anterior to apportionment, just as a question of
apportionment would be anterior to a question of Members’ obli-
gation to pay.

It is true that, as already noted, the preamble of the resolution
containing the request refers to the General Assembly’s ‘‘need for
authoritative legal guidance as to obligations of Member States”,
but it is to be assumed that in the understanding of the General
Assembly, it would find such guidance in the advisory opinion
which the Court would give on the question whether certain identi-
fied expenditures “‘constitute ‘expenses of the Organization’ within
the meaning of Article 17, paragraph 2, of the Charter”. If the Court
finds that the indicated expenditures are such “‘expenses’”’, it is not
called upon to consider the manner in which, or the scale by which,
they may be apportioned. The amount of what are unquestionably
“expenses of the Organization within the meaning of Article 17,
paragraph 2” is not in its entirety apportioned by the General
Assembly and paid for by the contributions of Member States, since
the Organization has other sources of income. A Member State,
accordingly, is under no obligation to pay more than the amount
apportioned to it; the expenses of the Organization and the total
amount in money of the obligations of the Member States may not,
in practice, necessarily be identical.

The text of Article 17, paragraph 2, refers to ‘‘the expenses of
the Organization” without any further explicit definition of such
expenses. It would be possible to begin with a general proposition
to the effect that the ‘‘expenses” of any organization are the amounts
paid out to defray the costs of carrying out its purposes, in this case,
the political, economic, social, humanitarian and other purposes
of the United Nations. The next step would be to examine, as the
Court will, whether the resolutions authorizing the operations here
in question were intended to carry out the purposes of the United
Nations and whether the expenditures were incurred in furthering
these operations. Or, it might simply be said that the “expenses”’
of an organization are those which are provided for in its budget.
But the Court has not been asked to give an abstract definition of
the words ‘expenses of the Organization”. It has been asked to
answer a specific question related to certain identified expenditures
which have actually been made, but the Court would not adequately
discharge the obligation incumbent on it unless it examined in
some detail various problems raised by the question which the
General Assembly has asked.

II
159 CERTAIN EXPENSES OF U.N. (OPINION OF 20 VII 62)

It is perhaps the simple identification of “expenses’’ with the
items included in a budget, which has led certain arguments to
link the interpretation of the word “expenses” in paragraph 2 of
Article 17, with the word “‘budget”’ in paragraph 1 of that Article;
in both cases, it is contended, the qualifying adjective ‘‘regular’’
or ‘‘administrative” should be understood to be implied. Since no
such qualification is expressed in the text of the Charter, it could be
read in, only if such qualification must necessarily be implied from
the provisions of the Charter considered as a whole, or from some
particular provision thereof which makes it unavoidable to do so
in order to give effect to the Charter.

In the first place, concerning the word ‘“‘budget”’ in paragraph x of
Article 17, it is clear that the existence of the distinction between
“administrative budgets’ and “operational budgets” was not
absent from the minds of the drafters of the Charter, nor from the
consciousness of the Organization even in the early days of its
history. In drafting Article 17, the drafters found it suitable to
provide in paragraph x that ‘The General Assembly shall consider
and approve the budget of the Organization”. But in dealing with
the function of the General Assembly in relation to the specialized
agencies, they provided in paragraph 3 that the General Assembly
“shall examine the administrative budgets of such specialized agen-
cies’. If it had been intended that paragraph 1 should be limited
to the administrative budget of the United Nations organi-
zation itself, the word ‘administrative’ would have been
inserted in paragraph I as it was in paragraph 3. Moreover, had it
been contemplated that the Organization would also have had
another budget, different from the one which was to be approved
by the General Assembly, the Charter would have included some
reference to such other budget and to the organ which was to
approve it.

Similarly, at its first session, the General Assembly in drawing
up and approving the Constitution of the International Refugee
Organization, provided that the budget of that Organization was
to be divided under the headings “‘administrative’’, ‘‘operational”
and “large-scale resettlement”; but no such distinctions were intro-
duced into the Financial Regulations of the United Nations which
were adopted by unanimous vote in 1950, and which, in this respect,
remain unchanged. These regulations speak only of ‘‘the budget”
and do not provide any distinction between ‘‘administrative” and
“operational”’. |

In subsequent sessions of the General Assembly, including the
sixteenth, there have been numerous references to the idea of
distinguishing an “‘operational’’ budget; some speakers have advo-
cated such a distinction as a useful book-keeping device; some
considered it in connection with the possibility of differing scales
of assessment or apportionment; others believed it should mark a
differentiation of activities to be financed by voluntary contribu-

I2
160 CERTAIN EXPENSES OF U.N. (OPINION OF 20 VII 62)

tions. But these discussions have not resulted in the adoption of
two separate budgets based upon such a distinction.

Actually, the practice of the Organization is entirely consistent
with the plain meaning of the text. The budget of the Organization
has from the outset included items which would not fall within any
of the definitions of “administrative budget‘ which have been
advanced in this connection. Thus, for example, prior to the estab-
lishment of, and now in addition to, the “Expanded Programme
of Technical Assistance” and the “Special Fund’’, both of which
are nourished by voluntary contributions, the annual budget of
the Organization contains provision for funds for technical assist-
ance; in the budget for the financial year 1962, the sum of $6,400,000
is included for the technical programmes of economic development,
social activities, human rights activities, public administration and
narcotic drugs control. Although during the Fifth Committee dis-
cussions there was a suggestion that all technical assistance costs
should be excluded from the regular budget, the items under these
heads were all adopted on second reading in the Fifth Committee
without a dissenting vote. The ‘‘operational” nature of such activi-
ties so budgeted is indicated by the explanations in the budget
estimates, e.g. the requests “for the continuation of the operational
programme in the field of economic development contemplated
in General Assembly resolutions 200 (III) of 4 December 1948 and
304 (IV) of 16 November 1949”; and “for the continuation of the
operational programme in the field of advisory social welfare ser-
vices as contemplated in General Assembly resolution 418 (V) of
1 December 1950”’.

It is a consistent practice of the General Assembly to include in
the annual budget resolutions, provision for expenses relating to
the maintenance of international peace and security. Annually,
since 1947, the General Assembly has made anticipatory provision
for “unforeseen and extraordinary expenses”’ arising in relation to
the “‘maintenance of peace and security”. In a Note submitted to
the Court by the Controller on the budgetary and financial prac-
tices of the United Nations, “extraordinary expenses”’ are defined
as “obligations and expenditures arising as a result of the approval
by a council, commission or other competent United Nations body
of new programmes and activities not contemplated when the
budget appropriations were approved”’.

The annual resolution designed to provide for extraordinary
expenses authorizes the Secretary-General to enter into commit-
ments to meet such expenses with the prior concurrence of the
Advisory Committee on Administrative and Budgetary Questions,
except that such concurrence is not necessary if the Secretary-

13
167 CERTAIN EXPENSES OF U.N. (OPINION OF 20 VII 62)

General certifies that such commitments relate to the subjects
mentioned änd the amount does not exceed $2 million. At its
fifteenth and sixteenth sessions, the General Assembly resolved
“that if, as a result of a decision of the Security Council, commit-
ments relating to the maintenance of peace and security should
arise in an estimated total exceeding $10 million’’ before the General
Assembly was due to meet again, a special session should be con-
vened by the Secretary-General to consider the matter. The Secre-
tary-General is regularly authorized to draw on the Working Capital
Fund for such expenses but is required to submit supplementary
budget estimates to cover amounts so advanced. These annual
resolutions on unforeseen and extraordinary expenses were adopted
without a dissenting vote in every year from 1947 through 1959,
except for 1952, 1953 and 1954, when the adverse votes are attri-
butable to the fact that the resolution included the specification of a
controversial item—United Nations Korean war decorations.

It is notable that the 1961 Report of the Working Group of
Fifteen on the Examination of the Administrative and Budgetary
Procedures of the United Nations, while revealing wide differences
of opinion on a variety of propositions, records that the following
statement was adopted without opposition:

“22, Investigations and observation operations undertaken by the
Organization to prevent possible aggression should be financed as
part of the regular budget of the United Nations.”

In the light of what has been stated, the Court concludes that
there is no justification for reading into the text of Article 17,
paragraph 1, any limiting or qualifying word before the word
“budget”

*
* *

Turning to paragraph 2 of Article 17, the Court observes that,
on its face, the term “expenses of the Organization” means all the
expenses and not just certain types of expenses which might be
referred to as “regular expenses”. An examination of other parts of
the Charter shows the variety of expenses which must inevitably
be included within the “expenses of the Organization” just as much
as the salaries of staff or the maintenance of buildings.

For example, the text of Chapters IX and X of the Charter with
reference to international economic and social cooperation, espe-
cially the wording of those articles which specify the functions and
powers of the Economic and Social Council, anticipated the nume-
rous and varied circumstances under which expenses of the Organi-

14
162 CERTAIN EXPENSES OF U.N. (OPINION OF 20 VII 62)

zation could be incurred and which have indeed eventuated in
practice.

Furthermore, by Article 98 of the Charter, the Secretary-General
is obligated to perform such functions as are entrusted to him by
the General Assembly, the Security Council, the Economic and
Social Council, and the Trusteeship Council. Whether or not ex-
penses incurred in his discharge of this obligation become ‘‘expenses
of the Organization” cannot depend on whether they be adminis-
trative or some other kind of expenses.

The Court does not perceive any basis for challenging the legality
of the settled practice of including such expenses as these in the
budgetary amounts which the General Assembly apportions among
the Members in accordance with the authority which is given to it
by Article 17, paragraph 2.

*
* *

Passing from the text of Article 17 to its place in the general
structure and scheme of the Charter, the Court will consider whether
in that broad context one finds any basis for implying a limitation
upon the budgetary authority of the General Assembly which in
turn might limit the meaning of “expenses” in paragraph 2 of that
Article.

The general purposes of Article 17 are the vesting of control over
the finances of the Organization, and the levying of apportioned
amounts of the expenses of the Organization in order to enable it to
carry out the functions of the Organization as a whole acting
through its principal organs and such subsidiary organs as may be
established under the authority of Article 22 or Article 29.

Article 17 is the only article in the Charter which refers to budget-
ary authority or to the power to apportion expenses, or otherwise
to raise revenue, except for Articles 33 and 35, paragraph 3, of the
Statute of the Court which have no bearing on the point here under
discussion. Nevertheless, it has been argued before the Court that
one type of expenses, namely those resulting from operations for
the maintenance of international peace and security, are not
“expenses of the Organization’’ within the meaning of Article 17,
paragraph 2, of the Charter, inasmuch as they fall to be dealt with
exclusively by the Security Council, and more especially through
agreements negotiated in accordance with Article 43 of the Charter.

The argument rests in part upon the view that when the mainte-
nance of international peace and security is involved, it is only the
Security Council which is authorized to decide on any action relative
thereto. It is argued further that since the General Assembly’s
power is limited to discussing, considering, studying and recom-
mending, it cannot impose an obligation to pay the expenses which
result from the implementation of its recommendations. This

15
163 CERTAIN EXPENSES OF U.N. (OPINION OF 20 VII 62)

argument leads to an examination of the respective functions of
the General Assembly and of the Security Council under the Charter,
particularly with respect to the maintenance of international
peace and security.

Article 24 of the Charter provides:

“In order to ensure prompt and effective action by the United
Nations, its Members confer on the Security Council primary
responsibility for the maintenance of international peace and
security...”

The responsibility conferred is ‘primary’, not exclusive. This
primary responsibility is conferred upon the Security Council, as
stated in Article 24, “in order to ensure prompt and effective
action”. To this end, it is the Security Council which is given a power
to impose an explicit obligation of compliance if for example it
issues an order or command to an aggressor under Chapter VII. It is
only the Security Council which can require enforcement by coercive
action against an aggressor.

The Charter makes it abundantly clear, however, that the General
Assembly is also to be.concerned with international peace and
security. Article 14 authorizes the General Assembly to ‘‘recom-
mend measures for the peaceful adjustment of any situation,
regardless of origin, which it deems likely to impair the general
welfare or friendly relations among nations, including situations
resulting from a violation of the provisions of the present Charter
setting forth the purposes and principles of the United Nations’.
The word “measures” implies some kind of action, and the only
limitation which Article 14 imposes on the General Assembly is the
restriction found in Article 12, namely, that the Assembly should not
recommend measures while the Security Council is dealing with the
same matter unless the Council requests it to do so. Thus while it
is the Security Council which, exclusively, may order coercive
action, the functions and powers conferred by the Charter on the
General Assembly are not confined to discussion, consideration,
the initiation of studies and the making of recommendations; they
are not merely hortatory. Article 18 deals with ‘‘decisions” of the
General Assembly ‘on important questions”. These “decisions”
do indeed include certain recommendations, but others have dispo-
sitive force and effect. Among these latter decisions, Article 18
includes suspension of rights and privileges of membership, expul-
sion of Members, ‘‘and budgetary questions”. In connection with
the suspension of rights and privileges of membership and expulsion
from membership under Articles 5 and 6, it is the Security Council
which has only the power to recommend and it is the General
Assembly which decides and whose decision determines status; but
there is a close collaboration between the two organs. Moreover,
these powers of decision of the General Assembly under Arti-

16
164 CERTAIN EXPENSES OF U.N. (OPINION OF 20 VII 62)

cles 5 and 6 are specifically related to preventive or enforcement
measures.

By Article 17, paragraph 1, the General Assembly is given the
power not only to “‘consider” the budget of the Organization, but
also to ‘“‘approve” it. The decision to “‘approve’’ the budget has a
close connection with paragraph 2 of Article 17, since thereunder
the General Assembly is also given the power to apportion the
expenses among the Members and the exercise of the power of
apportionment creates the obligation, specifically stated in Article
17, paragraph 2, of each Member to bear that part of the expenses
which is apportioned to it by the General Assembly. When those
expenses include expenditures for the maintenance of peace and
security, which are not otherwise provided for, it is the General
Assembly which has the authority to apportion the latter amounts
among the Members. The provisions of the Charter which distribute
functions and powers to the Security Council and to the General
Assembly give no support to the view that such distribution ex-
cludes from the powers of the General Assembly the power to
provide for the financing of measures designed to maintain peace
and security.

The argument supporting a limitation on the budgetary authority
of the General Assembly with respect to the maintenance of inter-
national peace and security relies especially on the reference to
“action” in the last sentence of Article 11, paragraph 2. This para-
graph reads as follows:

“The General Assembly may discuss any questions relating to the
maintenance of international peace and security brought before it
by any Member of the United Nations, or by the Security Council,
or by a State which is not a Member of the United Nations in
accordance with Article 35, paragraph 2, and, except as provided
in Article 12, may make recommendations with regard to any such
question to the State or States concerned or to the Security Council,
or to both. Any such question on which action is necessary shall
be referred to the Security Council by the General. Assembly either
before or after discussion.”

The Court considers that the kind of action referred to in Ar-
ticle 1x, paragraph 2, is coercive or enforcement action. This para-
graph, which applies not merely to general questions relating to
peace and security, but also to specific cases brought before the
General Assembly by a State under Article 35, in its first sentence
empowers the General Assembly, by means of recommendations
to States or to the Security Council, or to both, to organize peace-
keeping operations, at the request, or with the consent, of the States
concerned. This power of the General Assembly is a special power
which in no way derogates from its general powers under Article 10

17
165 CERTAIN EXPENSES OF U.N. (OPINION OF 20 VIt 62)

or Article 14, except as limited by the last sentence of Article rz,
paragraph 2. This last sentence says that when “‘action’’ is necessary
the General Assembly shall refer the question to the Security Coun-
cil. The word “action”? must mean such action as is solely within
the province of the Security Council. It cannot refer to recommen-
dations which the Security Council might make, as for instance
under Article 38, because the General Assembly under Article 11
has a comparable power. The “action” which is solely within the
province of the Security Council is that which is indicated by the
title of Chapter VII of the Charter, namely “Action with respect to
threats to the peace, breaches of the peace, and acts of aggression”’.
If the word “action” in Article 11, paragraph 2, were interpreted to
mean that the General Assembly could make recommendations
only of a general character affecting peace and security in the
abstract, and not in relation to specific cases, the paragraph would
not have provided that the General Assembly may make recom-
mendations on questions brought before it by States or by the
Security Council. Accordingly, the last sentence of Article II, para-
graph 2, has no application where the necessary action is not en-
forcement action.

The practice of the Organization throughout its history bears out
the foregoing elucidation of the term “‘action” in the last sentence
of Article 11, paragraph 2. Whether the General Assembly proceeds
under Article 11 or under Article 14, the implementation of its
recommendations for setting up commissions or other bodies in-
volves organizational activity—action—in connection with the
maintenance of international peace and security. Such implemen-
tation is a normal feature of the functioning of the United Nations.
Such committees, commissions or other bodies or individuals,
constitute, in some cases, subsidiary organs established under the
authority of Article 22 of the Charter. The functions of the General
Assembly for which it may establish such subsidiary organs include,
for example, investigation, observation and supervision, but the
way in which such subsidiary organs are utilized depends on the
consent of the State or States concerned.

The Court accordingly finds that the argument which seeks, by
reference to Article 11, paragraph 2, to limit the budgetary author-
ity of the General Assembly in respect of the maintenance of inter-
national peace and security, is unfounded.

*
* *

It has further been argued before the Court that Article 43 of the
Charter constitutes a particular rule, a lex specialis, which derogates

18
166 CERTAIN EXPENSES OF U.N. (OPINION OF 20 VII 62)

from the general rule in Article 17, whenever an expenditure for the
maintenance of international peace and. security is involved.
Article 43 provides that Members shall negotiate agreements with
the Security Council on its initiative, stipulating what ‘‘armed forces,
assistance and facilities, including rights of passage, necessary for
the purpose of maintaining international peace and security’’, the
Member State will make available to the Security Council on its call.
According to paragraph 2 of the Article:

“Such agreement or agreements shall govern the numbers and
types of forces, their degree of readiness and general location, and
the nature of the facilities and assistance to be provided.”

The argument is that such agreements were intended to include
specifications concerning the allocation of costs of such enforcement
actions as might be taken by direction of the Security Council, and
that it is only the Security Council which has the authority to
arrange for meeting such costs.

With reference to this argument, the Court will state at the out-
set that, for reasons fully expounded later in this Opinion, the
operations known as UNEF and ONUC were not enforcement actions
within the compass of Chapter VII of the Charter and that there-
fore Article 43 could not have any applicability to the cases with
which the Court is here concerned. However, even if Article 43 were
applicable, the Court could not accept this interpretation of its
text for the following reasons.

There is nothing in the text of Article 43 which would limit the
discretion of the Security Council in negotiating such agreements.
It cannot be assumed that in every such agreement the Security
Council would insist, or that any Member State would be bound to
agree, that such State would bear the entire cost of the “‘assistance”’
which it would make available including, for example, transport
of forces to the point of operation, complete logistical maintenance
in the field, supplies, arms and ammunition, etc. If, during nego-
tiations under the terms of Article 43, a Member State would be
entitled (as it would be) to insist, and the Security Council would
be entitled (as it would be) to agree, that some part of the expense
should be borne by the Organization, then such expense would form
part of the expenses of the Organization and would fall to be appor-
tioned by the General Assembly under Article 17. It is difficult to
see how it could have been contemplated that all potential expenses
could be envisaged in such agreements concluded perhaps long in
advance. Indeed, the difficulty or impossibility of anticipating the
entire financial impact of enforcement measures on Member States
is brought out by the terms of Article 50 which provides that a State,
whether a Member of the United Nations or not, ‘“‘which finds itself
confronted with special economic problems arising from the carry-
ing out of those [preventive or enforcement] measures, shall have

19
167 CERTAIN EXPENSES OF U.N. (OPINION OF 20 VII 62)

the right to consult the Security Council with regard to a solution
of those problems”. Presumably in such a case the Security Council
might determine that the overburdened State was entitled to some
financial assistance; such financial assistance, if afforded by the
Organization, as it might be, would clearly constitute part of the
“expenses of the Organization”. The economic problems could not
have been covered in advance by a negotiated agreement since they
would be unknown until after the event and. in the case of non-
Member States, which are also included in Article 50, no agreement
at all would have been negotiated under Article 43.

Moreover, an argument which insists that all measures taken for
the maintenance of international peace and security must be
financed through agreements concluded under Article 43, would
seem to exclude the possibility that the Security Council might
act under some other Article of the Charter. The Court cannot
accept so limited a view of the powers of the Security Council under
the Charter. It cannot be said that the Charter has left the Security
Council impotent in the face of an emergency situation when agree-
ments under Article 43 have not been concluded.

Articles of Chapter VII of the Charter speak of “situations” as
well as disputes, and it must lie within the power of the Security
Council to police a situation even though it does not resort to
enforcement action against a State. The costs of actions which the
Security Council is authorized to take constitute “expenses of the
Organization within the meaning of Article 17, paragraph 2”.

*
* *

The Court has considered the general problem of the interpre-
tation of Article 17, paragraph 2, in the light of the general struc-
ture of the Charter and of the respective functions assigned by the
Charter to the General Assembly and to the Security Council, with
a view to determining the meaning of the phrase “the expenses of
the Organization’. The Court does not find it necessary to go
further in giving a more detailed definition of such expenses. The
Court will, therefore, proceed to examine the expenditures enumer-
ated in the request for the advisory opinion. In determining whether
the actual expenditures authorized constitute ‘‘expenses of the
Organization within the meaning of Article 27, paragraph 2, of the
Charter”, the Court agrees that such expenditures must be tested
by their relationship to the purposes of the United Nations in the
sense that if an expenditure were made for a purpose which is not
one of the purposes of the United Nations, it could not be considered
an “expense of the Organization”.

The purposes of the United Nations are set forth in Article I
of the Charter. The first two purposes as stated in paragraphs 1

20
168 CERTAIN EXPENSES OF U.N. (OPINION OF 20 VII 62)

and 2, may be summarily described as pointing to the goal of inter-
national peace and security and friendly relations. The third purpose
is the achievement of economic, social, cultural and humanitarian
goals and respect for human rights. The fourth and last purpose is:
“To be a center for harmonizing the actions of nations in the
attainment of these common ends.”

The primary place ascribed to international peace and security is
natural, since the fulfilment of the other purposes will be dependent
upon the attainment of that basic condition. These purposes are
broad indeed, but neither they nor the powers conferred to effec-
tuate them are unlimited. Save as they have entrusted the Organi-
zation with the attainment of these common ends, the Member
States retain their freedom of action. But when the Organization
takes action which warrants the assertion that it was appropriate
for the fulfilment of one of the stated purposes of the United Nations,
the presumption is that such action is not wliva vires the Organi-
zation.

If it is agreed that the action in question is within the scope of
the functions of the Organization but it is alleged that it has been
initiated or carried out in a manner not in conformity with the
division of functions among the several organs which the Charter
prescribes, one moves to the internal plane, to the internal structure
of the Organization. If the action was taken by the wrong organ, it
was irregular as a matter of that internal structure, but this would
not necessarily mean that the expense incurred was not an expense
of the Organization. Both national and international law contem-
plate cases in which the body corporate or politic may be bound,
as to third parties, by an ultra vires act of an agent.

In the legal systems of States, there is often some procedure for
determining the validity of even a legislative or governmental act,
but no analogous procedure is to be found in the structure of the
United Nations. Proposals made during the drafting of the Charter
to place the ultimate authority to interpret the Charter in the
International Court of Justice were not accepted; the opinion which
the Court is in course of rendering is an advisory opinion. As anti-
cipated in 1945, therefore, each organ must, in the first place at
least, determine its own jurisdiction. If the Security Council, for
example, adopts a resolution purportedly for the maintenance of
international peace and security and if, in accordance with a
mandate or authorization in such resolution, the Secretary-General
incurs financial obligations, these amounts must be presumed to
constitute ““expenses of the Organization”.

The Financial Regulations and Rules of the United Nations,
adopted by the General Assembly, provide:

“Regulation 4.1: The appropriations voted by the General
Assembly shall constitute an authorization to the Secretary-
169 CERTAIN EXPENSES OF U.N. (OPINION OF 20 VII 62)

General to incur obligations and make payments for the purposes
for which the appropriations were voted and up to the amounts so
voted.”

Thus, for example, when the General Assembly in resolution
1619 (XV) included a paragraph reading:

“3. Decides to appropriate an amount of $100 million for the
operations of the United Nations in the Congo from 1 January to
31 October 1961’’,

this constituted an authorization to the Secretary-General to incur
certain obligations of the United Nations just as clearly as when in
resolution 1590 (XV) the General Assembly used this language:

“3. Authorizes the Secretary-General ... to incur commitments
in 1961 for the United Nations operations in the Congo up to the
total of $24 million...”

On the previous occasion when the Court was called upon to
consider Article 17 of the Charter, the Court found that an award of
the Administrative Tribunal of the United Nations created an
obligation of the Organization and with relation thereto the Court
said that:

“the function of approving the budget does not mean that the
General Assembly has an absolute power to approve or disapprove
the expenditure proposed to it; for some part of that expenditure
arises out of obligations already incurred by the Organization, and
to this extent the General Assembly has no alternative but to
honour these engagements”. (Effects of awards of compensation made
bv the United Nations Administrative Tribunal, I.C.J. Reports 1954,

p. 59.)

Similarly, obligations of the Organization may be incurred by the
Secretary-General, acting on the authority of the Security Council or
of the General Assembly, and the General Assembly “has no alter-
native but to honour these engagements”.

The obligation is one thing: the way in which the obligation is
met—that is from what source the funds are secured—is another.
The General Assembly may follow any one of several alternatives:
it may apportion the cost of the item according to the ordinary
scale of assessment ; it may apportion the cost according to some
special scale of assessment; it may utilize funds which are volun-
tarily contributed to the Organization; or it may find some other
method or combination of methods for providing the necessary
funds. In this context, it is of no legal significance whether, as a
matter of book-keeping or accounting, the General Assembly
chooses to have the item in question included under one of the stan-
dard’ established sections of the “regular”? budget or whether it is
separately listed in some special account or fund. The significant
fact is that the item is an expense of the Organization and under

22
170 CERTAIN EXPENSES OF U.N. (OPINION OF 20 VII 62)

Article 17, paragraph 2, the General Assembly therefore has autho-
rity to apportion it.

The reasoning which has just been developed, applied to the reso-
lutions mentioned in the request for the advisory opinion, might
suffice as a basis for the opinion of the Court. The Court finds it
appropriate, however, to take into consideration other arguments
which have been advanced.

* * *

The expenditures enumerated in the request for an advisory
opinion may conveniently be examined first with reference to UNEF
and then to ONUC. In each case, attention will be paid first to the
operations and then to the financing of the operations.

In considering the operations in the Middle East, the Court must
analyze the functions of UNEF as set forth in resolutions of the
General Assembly. Resolution 998 (ES-I) of 4 November 1956
requested the Secretary-General to submit a plan “for the setting
up, with the consent of the nations concerned, of an emergency
international United Nations Force to secure and supervise the
cessation of hostilities in accordance with all the terms of’’ the
General Assembly’s previous resolution 997 (ES-I) of 2 November
1956. The verb “secure” as applied to such matters as halting the
movement of military forces and arms into the area and the con-
clusion of a cease-fire, might suggest measures of enforcement,
were it not that the Force was to be set up ‘‘with the consent of the
nations concerned”’.

In his first report on the plan for an emergency international
Force the Secretary-General used the language of resolution 998
(ES-T) in submitting his proposals. The same terms are used in
General Assembly resolution 1000 (ES-I) of 5 November in which
operative paragraph 1 reads:

“Establishes a United Nations Command for an emergency inter-
national Force to secure and supervise the cessation of hostilities
in accordance with all the terms of General Assembly resolution 997
(ES-I) of 2 November 1956.”

This resolution was adopted without a dissenting vote. In his
second and final report on the plan for an emergency international
Force of 6 November, te Secretary-General, in paragraphs 9 and
Io, stated:

“While the General Assembly is enabled to establish the Force
with the consent of those parties which contribute units to the
Force, it could not request the Force to be stationed or operate on
the territory of a givén country without the consent of the Govern-

23
171 CERTAIN EXPENSES OF U.N. (OPINION OF 20 VII 62)

ment of that country. This does not exclude the possibility that the
Security Council could use such a Force within the wider margins
provided under Chapter VII of the United Nations Charter. I would
not for the present consider it necessary to elaborate this point
further, since no use of the Force under Chapter VII, with the rights
in relation to Member States that this would entail, has been
envisaged.

10. The point just made permits the conclusion that the setting
up of the Force should not be guided by the needs which would
have existed had the measure been considered as part of an enfor-
cement action directed against a Member country. There is an
obvious difference between establishing the Force in order to secure
the cessation of hostilities, with a withdrawal of forces, and estab-
lishing such a Force with a view to enforcing a withdrawal of
forces.”

Paragraph 12 of the Report is particularly important because in
resolution 1001 (ES-I) the General Assembly, again without a
dissenting vote, “‘Concurs in the definition of the functions of the
Force as stated in paragraph 12 of the Secretary-General’s report”.
Paragraph 12 reads in part as follows:

“the functions of the United Nations Force would be, when a cease-
fire is being established, to enter Egyptian territory with the
consent of the Egyptian Government, in order to help maintain
quiet during and after the withdrawal of non-Egyptian troops, and
to secure compliance with the other terms established in the reso-
lution of 2 November 1956. The Force obviously should have no
rights other than those necessary for the execution of its functions,
in co-operation with local authorities. It would be more than an
observers’ corps, but in no way a military force temporarily con-
trolling the territory in which it is stationed; nor, moreover, should
the Force have military functions exceeding those necessary to
secure peaceful conditions on the assumption that the parties to
the conflict take all necessary steps for compliance with the rec-
ommendations of the General Assembly.”

It is not possible to find in this description of the functions of
UNEF, as outlined by the Secretary-General and concurred in by
the General Assembly without a dissenting vote, any evidence that
the Force was to be used for purposes of enforcement. Nor can such
evidence be found in the subsequent operations of the Force, opera-
tions which did not exceed the scope of the functions ascribed
to it.

It could not therefore have been patent on the face of the reso-
lution that the establishment of UNEF was in effect “enforcement
action” under Chapter VII which, in accordance with the Charter,
could be authorized only by the Security Council.

On the other hand, it is apparent that the operations were under-
taken to fulfil a prime purpose of the United Nations, that is, to

24
172 CERTAIN EXPENSES OF U.N. (OPINION OF 20 VII 62)

promote and to maintain a peaceful settlement of the situation.
This being true, the Secretary-General properly exercised the
authority given him to incur financial obligations of the Organi-
zation and expenses resulting form such obligations must be
considered “expenses of the Organization within the meaning of
Article 17, paragraph 2”’.

Apropos what has already been said about the meaning of the
word “action” in Article 11 of the Charter, attention may be called
to the fact that resolution 997 (ES-I), which is chronologically the
first of the resolutions concerning the operations in the Middle East
mentioned in the request for the advisory opinion, provides in
paragraph 5:

“Requests the Secretary-General to observe and report promptly
on the compliance with the present resolution to the Security

Council and to the General Assembly, for such further action as
they may deem appropriate in accordance with the Charter.”

The italicized words reveal an understanding that either of the
two organs might take “‘action” in the premises. Actually, as one
knows, the ‘“‘action” was taken by the General Assembly in adopting
two days later without a dissenting vote, resolution 998 (ES-I) and,
also without a dissenting vote, within another three days, resolu-
tions 1000 (ES-I) and 1007 (ES-]), all providing for UNEF.

The Court notes that these “actions” may be considered ‘‘meas-
ures’ recommended under Article 14, rather than “action” recom-
mended under Article 11. The powers of the General Assembly
stated in Article 14 are not made subject to the provisions of
Article 11, but only of Article 12. Furthermore, as the Court has
already noted, the word ‘‘measures” implies some kind of action.
So far as concerns the nature of the situations in the Middle East in
1956, they could be described as “likely to impair ... friendly rela-
tions among nations’’, just as well as they could be considered to
involve “the maintenance of international peace and security”.
Since the resolutions of the General Assembly in question do not
mention upon which article they are based, and since the language
used in most of them might imply reference to either Article 14 or
Article 11, it cannot be excluded that they were based upon the
former rather than the latter article.

* | * *
The financing of UNEF presented perplexing problems and the
debates on these problems have even led to the view that the
General Assembly never, either directly or indirectly, regarded the

25
173 CERTAIN EXPENSES OF U.N. (OPINION OF 20 VII 62)

expenses of UNEF as “expenses of the Organization within the
meaning of Article 17, paragraph 2, of the Charter”. With this
interpretation the Court cannot agree. In paragraph 15 of his
second and final report on the plan for an emergency international
Force of 6 November 1956, the Secretary-General said that this
problem required further study. Provisionally, certain costs might
be absorbed by a nation providing a unit, “while all other costs
should be financed outside the normal budget of the United Na-
tions”. Since it was “obviously impossible to make any estimate of
the costs without a knowledge of the size of the corps and the length
of its assignment’’, the “only practical course ... would be for the
General Assembly to vote a general authorization for the cost of
the Force on the basis of general principles such as those here
suggested”.

Paragraph 5 of resolution 1001 (ES-I) of 7 November 1956 states
that the General Assembly “Approves provisionally the basic rule
concerning the financing of the Force laid down in paragraph 15
of the Secretary-General’s report’’.

In an oral statement to the plenary meeting of the General
Assembly on 26 November 1956, the Secretary-General said:

“\.. I wish to make it equally clear that while funds received and
payments made with respect to the Force are to be considered as

. coming outside the regular budget of the Organization, the operation
is essentially a United Nations responsibility, and the Special
Account to be established must, therefore, be construed as coming
within the meaning of Article 17 of the Charter’.

At this same meeting, after hearing this statement, the General
Assembly in resolution 1122 (XI) noted that it had “provisionally
approved the recommendations made by the Secretary-General
concerning the financing of the Force’. It then authorized the
Secretary-General “to establish a United Nations Emergency
Force Special Account to which funds received by the United
Nations, outside the regular budget, for the purpose of meeting the
expenses of the Force shall be credited and from which payments
for this purpose shall be made”. The resolution then provided that
the initial amount in the Special Account should be $10 million and
authorized the Secretary-General “pending the receipt of funds for
the Special Account, to advance from the Working Capital Fund
such sums as the Special Account may require to meet any expenses
chargeable to it”. The establishment of a Special Account does not
necessarily mean that the funds in it are not to be derived from
contributions of Members as apportioned by the General Assembly.

26
174 CERTAIN EXPENSES OF U.N. (OPINION OF 20 VII 62)

The next of the resolutions of the General Assembly to be con-
sidered is 1089 (XI) of 21 December 1956, which reflects the uncer-
tainties and the conflicting views about financing UNEF. The
divergencies are duly noted and there is ample reservation con-
cerning possible future action, but operative paragraph 1 follows
the recommendation of the Secretary-General “that the expenses
relating to the Force should be apportioned in the same manner as
the expenses of the Organization”. The language of this paragraph
is clearly drawn from Article 17:

“x. Decides that the expenses of the United Nations Emergency
Force, other than for such pay, equipment, supplies and services
as may be furnished without charge by Governments of Member
States, shall be borne by the United Nations and shall be apportioned
among the Member States, to the extent of $10 million, in accord-
ance with the scale of assessments adopted by the General Assembly
for contributions to the annual budget of the Organization for the
financial year 1957;”

This resolution, which was adopted by the requisite two-thirds
majority, must have rested upon the conclusion that the expenses
of UNEF were “expenses of the Organization” since otherwise the
General Assembly would have had no authority to decide that they
“shall be borne by the United Nations” or to apportion them among
the Members. It is further significant that paragraph 3 of this
resolution, which established a study committee, charges this
committee with the task of examining ‘‘the question of the appor-
tionment of the expenses of the Force in excess of $ro million ...
and the principle or the formulation of scales of contributions differ-
ent from the scale of contributions by Member States to the ordinary
budget for 1957’’. The italicized words show that it was not contem-
plated that the Committee would consider any method of meeting
these expenses except through some form of apportionment al-
though it was understood that a different scale might be suggested.

The report of this study committee again records differences of
opinion but the draft resolution which it recommended authorized
further expenditures and authorized the Secretary-General to
advance funds from the Working Capital Fund and to borrow from
other funds if necessary; it was adopted as resolution 1090 (XI) by
the requisite two-thirds majority on 27 February 1957. In para-
graph 4 of that resolution, the General Assembly decided that it
would at its twelfth session “‘consider the basis for financing any
costs of the Force in excess of $10 million not covered by voluntary
contributions’.

Resolution 1151 (XII) of 22 November 1957, while contemplating
the receipt of more voluntary contributions, decided in paragraph 4
that the expenses authorized ‘‘shall be borne by the Members of
the United Nations in accordance with the scales of assessments

27
175 CERTAIN EXPENSES OF U.N. (OPINION OF 20 VII 62)

adopted by the General Assembly for the financial years 1957 and
1958 respectively”.

Almost a year later, on 14 November 1958, in resolution 1263
(XIII) the General Assembly, while “Noting with satisfaction the
effective way in which the Force continues to carry out its func-
tion”, requested the Fifth Committee ‘‘to recommend such action
as may be necessary to finance this continuing operation of the
United Nations Emergency Force”.

After further study, the provision contained in paragraph 4 of the
resolution of 22 November 1957 was adopted in paragraph 4 of
resolution 1337 (XI) of 13 December 1958. Paragraph 5 of that
resolution requested ‘the Secretary-General to consult with the
Governments of Member States with respect to their views con-
cerning the manner of financing the Force in the future, and to
submit a report together with the replies to the General Assembly
at its fourteenth session”. Thereafter a new plan was worked out
for the utilization of any voluntary contributions, but resolution
1441 (XIV) of 5 December 1950, in paragraph 2: “Decides to assess
the amount of $20 million against all Members of the United Nations
on the basis of the regular scale of assessments” subject to the use
of credits drawn from voluntary contributions. Resolution 1575
(XV) of 20 December 1960 is practically identical.

The Court concludes that, from year to year, the expenses of
UNEF have been treated by the General Assembly as expenses of
the Organization within the meaning of Article 17, paragraph 2,
of the Charter.

*
* *

The operations in the Congo were initially authorized by the
Security Council in the resolution of 14 July 1960 which was adopted
without a dissenting vote. The resolution, in the light of the appeal
from the Government of the Congo, the report of the Secretary-
General and the debate in the Security Council, was clearly adopted
with a view to maintaining international peace and security. How-
ever, it is argued that that resolution has been implemented, in
violation of provisions of the Charter inasmuch as under the Charter
it is the Security Council that determines which States are to par-
ticipate in carrying out decisions involving the maintenance of
international peace and security, whereas in the case of the Congo
the Secretary-General himself determined which States were to par-
ticipate with their armed forces or otherwise.

By paragraph 2 of the resolution of 14 July 1960 the Security
Council “Decides to authorize the Secretary-General to take the
necessary steps, in consultation with the Government of the Repub-
lic of the Congo, to provide the Government with such military
assistance as may be necessary”. Paragraph 3 requested the

28
176 CERTAIN EXPENSES OF U.N. (OPINION OF 20 VII 62)

Secretary-General “to report to the Security Council as appro-
priate’. The Secretary-General made his first report on 18 July
and in it informed the Security Council which States he had asked
to contribute forces or matériel, which ones had complied, the size
of the units which had already arrived in the Congo (a total of
some 3,500 troops), and some detail about further units expected.

On 22 July the Security Council by unanimous vote adopted a
further resolution in which the preamble states that it had consi-
dered this report of the Secretary-General and appreciated ‘‘the
work of the Secretary-General and the support so readily and so
speedily given to him by all Member States invited by him to give
assistance”. In operative paragraph 3, the Security Council “Com-
mends the Secretary-General for the prompt action he has taken
to carry out resolution 5/4387 of the Security Council, and for his
first report”.

On 9 August the Security Council adopted a further resolution
without a dissenting vote in which it took note of the second report
and of an oral statement of the Secretary-General and in operative
paragraph 1: ‘“Confirms the authority given to the Secretary-
General by the Security Council resolutions of 14 July and 22 July
1960 and requests him to continue to carry out the responsibility
placed on him thereby’. This emphatic ratification is further
supported by operative paragraphs 5 and 6 by which all Member
States were called upon “to afford mutual assistance” and the
Secretary-General was requested “‘to implement this resolution and
to report further to the Council as appropriate”.

The Security Council resolutions of 14 July, 22 July and 9 August
1960 were noted by the General Assembly in its resolution 1474
(ES-IV) of 20 September, adopted without a dissenting vote, in
which it “fully supports” these resolutions. Again without a dis-
senting vote, on 21 February 1961 the Security Council reaffirmed
its three previous resolutions ‘‘and the General Assembly resolution
1474 (ES-IV) of 20 September 1960” and reminded “‘all States of
their obligations under these resolutions”.

Again without a dissenting vote on 24 November 1961 the Security
Council, once more recalling the previous resolutions, reaffirmed
“the policies and purposes of the United Nations with respect to
the Congo (Leopoldville) as set out”’ in those resolutions. Operative
paragraphs 4 and 5 of this resolution renew the authority to the
Secretary-General to continue the activities in the Congo.

In the light of such a record of reiterated consideration, confirma-
tion, approval and ratification by the Security Council and by the
General’ Assembly of the actions of the Secretary-General in

29
177 CERTAIN EXPENSES OF U.N. (OPINION OF 20 VII 62)

implementing the resolution of 14 July 1960, it is impossible to
reach the conclusion that the operations in question usurped or
impinged upon the prerogatives conferred by the Charter on the
Security Council. The Charter does not forbid the Security Council
to act through instruments of its own choice: under Article 29 it
“may establish such subsidiary organs as it deems necessary for
the performance of its functions”; under Article 08 it may entrust
“other functions” to the Secretary-General.

It is not necessary for the Court to express an opinion as to which
article or articles of the Charter were the basis for the resolutions
of the Security Council, but it can be said that the operations of
ONUC did not include a use of armed force against a State which
the ‘Security Council, under Article 39, determined to have com-
mitted an act of aggression or to have breached the peace. The
armed forces which were utilized in the Congo were not authorized
to take military action against any State. The operation did not
involve ‘‘preventive or enforcement measures’ against any State
under Chapter VIT and therefore did not constitute “action” as that
term is used in Article 11.

For the reasons stated, financial obligations which, in accordance
with the clear and reiterated authority of both the Security Council
and the General Assembly, the Secretary-General incurred on
behalf of the United Nations, constitute obligations of the Organi-
zation for which the General Assembly was entitled to make pro-
vision under the authority of Article 17.

* * *

In relation to ONUC, the first action concerning the financing of
the operation was taken by the General Assembly on 20 December
1960, after the Security Council had adopted its resolutions of
14 July, 22 July and 9 August, and the General Assembly had
adopted its supporting resolution of 20 September. This resolution
1583 (XV) of 20 December referred to the report of the Secretary-
General on the estimated cost of the Congo operations from 14 July
to 31 December 1960, and to the recommendations of the Advisory
Committee on Administrative and Budgetary Questions. It decided
to establish an ad hoc account for the expenses of the United
Nations in the Congo. It also took note of certain waivers of cost
claims and then decided to apportion the sum of $48.5 million among
the Member States ‘‘on the basis of the regular scale of assessment”
subject to certain exceptions. It made this decision because in the
preamble it had already recognized:

“that the expenses involved in the United Nations operations in
the Congo for 1960 constitute ‘expenses of the Organization’ within

30
178 CERTAIN EXPENSES OF U.N. (OPINION OF 20 vir 62)

the meaning of Article 17, paragraph 2, of the Charter of the
United Nations and that the assessment thereof against Member
States creates binding legal obligations on such States to pay their
assessed shares”.

-

By its further resolution 1590 (XV) of the same day, the General
Assembly authorized the Secretary-General ‘to incur commitments
in 1961 for the United Nations operations in the Congo up to the
total of $24 million for the period from 1 January to 31 March 1961”.
On 3 April 1961, the General Assembly authorized the Secretary-
General to continue until 21 April “to incur commitments for the
United Nations operations in the Congo at a level not to exceed
$8 million per month”.

Importance has been attached to the statement included in the
preamble of General Assembly resolution 1619 (XV) of 21 April 1961
which reads:

“Bearing in mind that the extraordinary expenses for the United
Nations operations in the Congo are essentially different in nature
from the expenses of the Organization under the regular budget
and that therefore a procedure different from that applied in the
case of the regular budget is required for méeting these extraordinary
expenses.”

However, the same resolution in operative paragraph 4:

“Decides further to apportion as expenses of the Organization
the amount of $100 million among the Member States in accordance
with the scale of assessment for the regular budget subject to the
provisions of paragraph 8 below [paragraph 8 makes certain adjust-
ments for Member States assessed at the lowest rates or who receive
certain designated technical assistance], pending the establishment
of a different scale of assessment to defray the extraordinary
expenses of the Organization resulting from these operations.”

Although it is not mentioned in the resolution requesting the
advisory opinion, because it was adopted at the same meeting of
the General Assembly, it may be noted that the further resolution
1732 (XVI) of 20 December 1961 contains an identical paragraph
in the preamble and a comparable operative paragraph 4 on appor-
tioning $80 million.

‘The conclusion to be drawn from these paragraphs is that the
General Assembly has twice decided that even though certain
expenses are “extraordinary” and “essentially different” from those
under the “regular budget”, they are none the less ‘‘expenses of the
Organization” to be apportioned in accordance with the power
granted to the General Assembly by Article 17, paragraph 2. This
conclusion is strengthened by the concluding clause of paragraph 4
of the two resolutions just cited which states that the decision
therein to use the scale of assessment already adopted for the

31
179 CERTAIN EXPENSES OF U.N. (OPINION OF 20 VII 62)

regular budget is made “pending the establishment of a different
scale of assessment to defray the extraordinary expenses’’. The only
aiternative—and that means the ‘different procedure’’—contem-
plated was another scale of assessment and not some method other
than assessment. “‘Apportionment” and ‘assessment’ are terms
which relate only to the General Assembly’s authority under
Article 17.

*
* *

At the outset of this opinion, the Court pointed out that the text
of Article 17, paragraph 2, of the Charter could lead to the simple
conclusion that “the expenses of the Organization” are the amounts
paid out to defray the costs of carrying out the purposes of the
Organization. It was further indicated that the Court would examine
the resolutions authorizing the expenditures referred to in the
request for the advisory opinion in order to ascertain whether they
were incurred with that end in view. The Court has made such an
examination and finds that they were so incurred. The Court has
also analyzed the principal arguments which have been advanced
against the conclusion that the expenditures in question should be
considered as ‘‘expenses of the Organization within the meaning of
Article 17, paragraph 2, of the Charter of the United Nations”, and
has found that these arguments are unfounded. Consequently, the
Court arrives at the conclusion that the question submitted to it in
General Assembly resolution 1731 (XVI) must be answered in the
affirmative.

For these reasons,

THE COURT IS OF OPINION,

by nine votes to five,

that 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 operatioris 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 1607 (XV) of
15 April 1961, and the expenditures authorized in General Assembly
resolutions 1122 (XJ) of 26 November 1956, 1089 (XI) of 21 Decem-
ber 1956, Iogo (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

32
180 CERTAIN EXPENSES OF U.N. (OPINION OF 20 VII 62)

Force undertaken in pursuance of General Assembly resolutions
997 (ES-I) of 2 November 1056, 998 (ES-I) and 909 (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.

Done in English and in French, the English text being authorita-
tive, at the Peace Palace, The Hague, this twentieth day of July, one
thousand nine hundred and sixty-two, in two copies, one of which
will be placed in the archives of the Court and the other transmitted
to the Secretary-General of the United Nations.

(Signed) B. WINIARSKI,
President.

(Signed) GARNIER-COIGNET,
Registrar.

Judge SPIROPOULOS makes the following declaration:

While accepting the Court’s conclusion, I cannot agree with all
the views put forward in the Advisory Opinion. In particular, I
consider that the affirmative reply to the request for an opinion is
justified by the argument that the resolutions of the General As-
sembly authorizing the financing of the United Nations operations
in the Congo and the Middele East, being resolutions designed to
meet expenditure concerned with the fulfilment of the purposes of
the United Nations, which were adopted by two-thirds of the Mem-
bers of the General Assembly present and voting, create obliga-
tions for the Members of the United Nations.

I express no opinion as to the conformity with the Charter of the
resolutions relating to the United Nations operations in the Congo
and the Middle East, for the following reasons:

The French delegation had proposed to the General Assembly the
acceptance of an amendment to the text, finally adopted by it,
according to which amendment the question put to the Court
would have become: ‘Were the expenditures authorized, etc. ...
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?”

On 20 December 1961, in the course of the meeting of the General
Assembly, this amendment was accompanied by a statement by the

33
181 CERTAIN EXPENSES OF U.N. (OPINION OF 20 VII 62)

French delegation justifying the submission of the French amend-
ment and which, among other things, said:

“In the opinion of the French delegation, the question put to
the Court does not enable the latter to give a clear-cut opinion on
the juridical basis for the financial obligations of Member States.
The Court cannot, in fact, appraise the scope of those resolutions
without determining what obligations they may create for Member
States under the Charter.

It is for this reason that the French delegation is submitting to
the Assembly an amendment [A/L. 378] the adoption of which
would enable the Court to determine whether or not the Assembly
resolutions concerning the financial implications of the United
Nations operations in the Congo and the Middle East are in con-
formity with the Charter. Only thus, if the matter is referred to the
Court, will it be done in such a way as to take into account the
scope and nature of the problems raised in the proposal to request
an opinion.”

The French amendment was rejected.

The rejection of the French amendment by the Generali Assembly
seems to me to show the desire of the Assembly that the conformity
or non-conformity of the decisions of the Assembly and of the
Security Council concerning the United Nations operations in the
Congo and the Middle East should not be examined by the Court.
It seems natural, indeed, that the General Assembly should not
have wished that the Court should pronounce on the validity of
resolutions which have been applied for several years. In these
circumstances, I have felt bound to refrain from pronouncing on
the conformity with the Charter of the resolutions relating to the
United Nations operations in the Congo and the Middle East.

Judges Sir Percy SPENDER, Sir Gerald FITZMAURICE and MORELLI
append to the Opinion of the Court statements of their Separate
Opinions.

President WINIARSKI and Judges BASDEVANT, MORENO QUIN-
TANA, KORETSKY and BUSTAMANTE Y RIVERO append to the Opin-
ion of the Court statements of their Dissenting Opinions.

(Initialled) B. W.
(Initialled) G.-C.

34


INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING THE
AERIAL INCIDENT OF
JULY 27th, 1955

(UNITED KINGDOM v. BULGARIA)

ORDER OF JANUARY 27th, 1958

1958

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE RELATIVE A
L7INCIDENT AERIEN DU
27 JUILLET 1955

(ROYAUME-UNI c. BULGARIE)

ORDONNANCE DU 27 JANVIER 1958
This Order should be cited as follows:
“Case concerning the Aerial Incident of July 27th, 1955
(United Kingdom v. Bulgaria),
Order of January a7th, 1958: I.C.]. Reports 1958, p. 13.”

La présente ordonnance doit étre citée comme suit:
«Affaire relative à l'incident aérien du 27 juillet 1955
(Royaume-Uni c. Bulgarie),

Ordonnance du 27 janvier 1958: C.I. J. Recueil 1958, p. 13.»

Sales number 1 80
Noe de vente:

13

COUR INTERNATIONALE DE JUSTICE

1958
Le 27 janvier
Rôle général

ANNÉE 1958 n° 37

27 janvier 1958

AFFAIRE RELATIVE A
L’INCIDENT AERIEN DU
27 JUILLET 1955

(ROYAUME-UNI c. BULGARIE)

ORDONNANCE

Le Président de la Cour internationale de Justice,
vu l’article 48 du Statut de la Cour,
vu l’article 37 du Règlement de la Cour;

Vu l'ordonnance du 26 novembre 1957 par laquelle la Cour a
fixé au 2 juin 1958 la date d’expiration du délai pour le dépôt du
mémoire du Gouvernement du Royaume-Uni de Grande-Bretagne
et d'Irlande du Nord et réservé pour une ordonnance à rendre
ultérieurement la fixation d’un délai pour la présentation par la
Partie défenderesse de son contre-mémoire;

Après s’étre renseigné auprès de la Partie défenderesse,

Fixe au 9 décembre 1958 la date d’expiration du délai pour le
dépôt du contre-mémoire du Gouvernement de la République
populaire de Bulgarie;

Réserve la suite de la procédure.

Fait en anglais et en frangais, le texte anglais faisant foi, au
Palais de la Paix, à La Haye, le vingt-sept janvier mil neuf cent
cinquante-huit, en trois exemplaires, dont l’un restera déposé aux
archives de la Cour et dont les autres seront transmis respectivement

4
INCIDENT AERIEN (R.-U. C. BULGARIE) (ORD. 27 I 58) 14

au Gouvernement du Royaume-Uni de Grande-Bretagne et d’Irlan-
de du Nord et au Gouvernement de la République populaire de
Bulgarie.

Le Président,
(Signé) Green H. HACKWORTH.

Le Greffier,
(Signé) J. LOPEZ OLIVAN.