198

SEPARATE OPINION OF
JUDGE SIR GERALD FITZMAURICE

I

I have not written this separate opinion because I disagree with
the operative conclusion of the Opinion of the Court. I consider
that the expenditures referred to in the Assembly’s Request are
without doubt expenses of the Organization within the meaning
of Article 17, paragraph 2, of the Charter. I also agree with much of
the reasoning on which the Court’s Opinion is based, although it
goes more into matters of pure detail and procedure than I would
have thought necessary. But as I shall indicate, I have reservations
on certain points of principle having wider implications, though
they do not affect the final conclusion reached in the present case.

Moreover (and this constitutes my main reason for writing a
separate opinion), it would seem that the Opinion of the Court,
while dealing elaborately with certain matters, refrains designedly
from discussing other, more general, aspects of the subject, i
volving difficulties which have troubled a number of those who have
had to do with it. The Opinion, in short, ignores various points
which appear to me to be very relevant; for although the ‘legal
guidance” mentioned in the preambular part of the Request is
asked for in connection with the question of ‘‘financing the United
Nations operations in the Congo and in the Middle East”, I con-
sider that even in these contexts alone, this guidance must fall
short of full utility if it fails to deal with certain more general
matters, and also with one or two others that the Court has not
gone into.

For instance, the Court has taken the view that it is only re-
quired to state whether certain specified expenditures are expenses
of the Organization, and is not called upon to declare what are the
financial obligations of Member States (hence the change in the
title of the case). To my mind the two questions are indissolubly
linked, for except in so far as there is an obligation to contribute
to expenditures which duly rank as ‘‘expenses”, there is no point
in determining whether these expenditures are expenses or not;
and as I shall show, it is necessary to deal with certain types of case
in which it could be contended that, although given expenditures
are expenses of the Organization, there may not necessarily or
always be an obligation for every Member State to contribute to
them.

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II

A short answer to the question put in the Request could be given
on the following lines: |

first, that the notion of expenses of the Organization cannot be
confined merely to its regular administrative expenses, since the
latter are not incurred as an end in themselves but as a means to
an end, namely, to enable the Organization to carry out the essen-
tial substantive functions for which it exists; therefore, to regard
the obligation of Member States as extending only to routine
administrative expenses would be as stultifying as it would be
disingenuous 1;

secondly, that the notion of expenses of the Organization must
extend at least to those incurred in the discharge of the essential
functions of the Organization for which it was brought into exist-
ence; that peace-keeping activities constitute such a function;
and that the expenditures specified in the Request for an advisory
opinion relate to peace-keeping activities ;

thirdly, that the Charter does not exclude, and indeed (subject to
specified conditions and limitations} makes express provision for
the carrying out of certain peace-keeping activities by the Assembly
(Articles 11, 14, 35, etc.); and that the activities of the Assembly
in respect of which the expenditures at issue were incurred were of
this kind, and did not exceed the conditions and limitations in
question.

Broadly speaking, though in greater detail and with more elabora-
tion, these are some of the main considerations on which the Opinion
of the Court is in fact founded and, framed as indicated above, I
concur in them. The Court however, in addition to these considera-
tions, and more particularly in connection with those coming
under the third of them, has alluded to the possibility that, even
if, in carrying out the activities concerned, the Assembly was not
acting in conformity with the division of functions established by
the Charter, this would not cause the resulting expenditures to
cease being expenses of the Organization, provided that the related
activities came within the functions of the Organization as a whole—
the irregularity ranking merely as a matter appertaining to the
internal economy of the Organization. This is an idea which I think
must not be pressed too far (nor does the Court rely on it except
incidentally). It is certainly correct in one sense, namely, that inter-
nal irregularities would not affect liabilities definitely incurred by
or on behalf of the Organization, in relation to third parties outside

1 For instance, it would be a curious position, to say the least of it, if Member
States were obliged to contribute to paying the salaries of the Secretariat, but not
to the expenses of carrying out the functions of the Organization, for the purposes
of which the Secretariat had been engaged.

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the Organization or its membership 7. But what is really in question
here is the relationship of the Member States inter se, and vis-à-vis
the Organization as such, and there can be no doubt that, in prin-
ciple at least, expenditures incurred in excess of the powers of the
expending body are invalid expenditures. The question is, are they
invalid if they merely exceed the powers of the particular organ
authorizing them, but not those of the Organization as a whole?
It is true that there are cases, both in the domestic and in the inter-
national legal spheres, where all that matters (except on the purely
internal plane) is that a certain act has in fact been performed, or
not performed, as the case may be, and where the reasons for, or
channels through which the performance or non-performance has
taken place are immaterial. But in the present case, the question
of the financial obligations of Member States in relation to the
Organization is a question moving on the internal plane; and if an
instrument such as the Charter of the United Nations attributes
given functions in an exclusive manner to one ofits organs, consti-
tuted in a certain way—other and different functions being attri-
buted to other and differently constituted organs—this can only be
because, in respect of the performance of the functions concerned,
importance was attached to the precise constitution of the organ
concerned 3.

It is not however necessary to express any final view on this
matter, for the simple reason that, as the Opinion of the Court
brings out, the Charter does not, in fact, in the matter of peace-
keeping activities, establish any rigid general division of function
between the role of the Security Council and that of the Assembly.
Enforcement or coercitive action sivicto sensu is of course exclusively
for the Security Council, but I agree with the Court that the action
of the Assembly in the Middle East and in the Congo has not been
of this character. Furthermore, and as indicated by the Court, I
consider that this action of the Assembly has fallen within the scope
of its functions under the Charter, and has not exceeded the limi-
tations thereby imposed on the scope and exercise of those functions.

Beyond a somewhat general statement of this character, I would
not wish to go for present purposes. While I agree with the general
trend of the Court’s reasoning on what I will call the “military”
provisions of the Charter, I would have to reserve my position on a
number of points of formulation if I thought it necessary to go into
these provisions in detail.

2 I will postulate for present purposes that the third party is prima facie, entitled
in the particular circumstances, to assume that the liabilities have been validly
incurred.

3 Clearly an organ constituted in a particular way will tend to carry out a given
function in a different way from an organ differently constituted, and will have
been entrusted with that function for that reason, inter alia.

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II

Much of the Opinion of the Court is concerned with and based on
a consideration of what has been the actual practice of the United
Nations in financial matters, both generally and in relation to the
particular expenditures here involved. I would have preferred to
see less reliance on practice and more on ordinary reasoning. The
argument drawn from practice, if taken too far, can be question-
begging.

However, no one would deny that practice must be a very relevant
factor. According to what has become known as the “principle of
subsequent practice’, the interpretation in fact given to an inter-
national instrument by the parties to it, as a matter of settled
practice, is good presumptive (and may in certain cases be virtually
conclusive) evidence of what the correct legal interpretation is—a
principle applied by the Court on several occasions*. But where
this is the case, it is so because it is possible and reasonable in the
circumstances to infer from the behaviour of the parties that they
have regarded the interpretation they have given to the instrument
in question as the legally correct one, and have tacitly recognized
that, in consequence, certain behaviour was legally incumbent
upon them. In the present context, it is necessary to take into
account the fact that any Member State can at all times, and in
any event, contribute voluntarily to the expenses of the Organi-
zation, whether or not it recognizes a legal obligation to do so;
and furthermore, that a number of the expenditures of the Organi-
zation are in fact financed partly and, in certain important cases,
even wholly or mainly by voluntary contributions. In these
circumstances, it is hardly possible to infer from the mere fact that
Member States pay, that they necessarily admit in all cases a
positive legal obligation to do so; and where, as has not infrequently
occurred, they have only paid under or after protest, the easier
inference is that this was because, for whatever reason (by no means
necessarily consciousness of legal obligation) they were unwilling
in the last resort to withhold a contribution.

Nevertheless, while the existence of these considerations renders
it impossible to regard the practice of the United Nations as conclu-
sive in the matter—{it is indeed the validity of some part of that
practice whichis put in issue by the present Request)—it cannot be less
than very material; and even if a majority vote cannot in the
formal sense bind the minority, it can, if consistently exercised in a

+ See the South-West Africa case (1950), also the (Second) Admissions, Corfu,
Ivanian Oil Company and U.S. Nationals in Morocco cases.

5 As to these, see below at the end of the first paragraph of Section VIII.
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particular way, suffice to establish a settled practice which a tri-
bunal can usefully and properly take account of.

IV

Subject to the foregoing reservations {which however go to
reasoning only) 1 agree that the particular expenditures mentioned
in the Request rank as expenses of the Organization; but in arriving
at that conclusion the Court has failed to indicate in terms (though
it may to some extent have implied) what are the general limitations
of principle within which any given expenditure can rank as an
expense of the Organization; and this is something which I think
an advisory opinion on the financial obligations of Member States
ought to do, even though it is only their obligations respecting
certain particular expenditures that are actually in question.

In my opinion, two—partly overlapping but technically distinct—
conditions must be fulfilled before any given expenditure can rank
as an expense of the Organization. First, the expenditure must
belong to the genus ‘‘expense’’—that is to say it must come within
the class or category of expenditure normally (and which can in the
particular circumstances reasonably be) regarded as having the
basic nature of an ‘‘expense” properly so called. A sum of money
does not become an expense merely by being expended, or bv its
expenditure being authorized. Secondly, even if the expenditure in
question belongs in principle to the genus ‘‘expense”, it must have
been validly incurred, for a purpose which was itself valid and legiti-
mate, in order to rank as an expense within the meaning of Ar-
ticle 17, paragraph 2, involving for Member States an obligation
to contribute to it. There will remain a third question, namely, does
it follow that because a given expenditure is an ‘‘expense’’, every
Member State is invariably, and irrespective of circumstances,
bound to contribute to it according to that Member’s apportioned
share? I shall indicate in due course why, in my opinion, the answer
to this last question is not self-evident.

It will be convenient to deal first with the second of the above-
mentioned questions—that of the validity of any given expendi-
tures. This involves issues such as the powers of the authorizing
organ, whether the object of the expenditure falls within the scope
of the purposes of the Organization, and so forth, which must depend
on the particular circumstances of each case, and to which no
general solution is possible. In.the present case, an affirmative
answer on the question of the validity of the expenditures concerned
can and must be given, as indicated by the Court. But the important
practical point involved is how the validity or invalidity of any
given expenditures can be determined if controversy arises, seeing
that, as the Court points out, the Assembly is under no obligation to

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consult the Court, and, even if consulted, the Court can only render
an opinion having a purely advisory character; and moreover, that
there exists no other jurisdiction to which compulsory reference
can be made and which can also render a binding decision.

The solution propounded by the Court is a twofold one. One
aspect is indicated in the statement made in the Opinion (italics
added) that “As anticipated in 1945 ... each organ [sc. of the United
Nations} must, in the first place at least, determine its own
jurisdiction’ —i.e. the scope of its own powers and the validity of
their exercise. The phrase which has been italicized in the above
citation makes the view which the citation puts forward acceptable
up to a certain point. It is no doubt true that any objection to a
given exercise of powers, or to action based on the presumed exis-
tence of certain powers, must be advanced in the first instance in the
organ concerned, and will be subject to a ruling by it, in the form
of a motion or resolution adopted by a majority vote.

The real question however, in my view (and the Court does not
deal with it), is whether such a ruling would have to be regarded as
final. In the course of the oral proceedings, the Court was in effect
invited to take the view that this would be the case. It was suggested,
for example, that the mere fact that certain expenditures had been
actually apportioned by the Assembly, was conclusive as to their
validity. Apportionment would certainly be conclusive as to the
majority view of the Assembly, but this merely begs the question.
It amounts to saying that even if, on an objective and impartial
assessment, given expenditures had in fact been invalidly and
improperly incurred or authorized, they would nevertheless stand
automatically validated by the act of the Assembly in either
apportioning them among Member States or, in the event of a
challenge, subsequently resolving that the apportionment was good.

This is a view which I am unable to accept. It is too extreme.
Moreover, I do not read the Opinion of the Court as going so far.
The issues involved clearly transcend the merely financial problem,
and even on the financial side they go deeper; for if the Assembly
had the power automatically to validate any expenditure, as some
Governments appear to have claimed in their written or oral
statements, this would mean that, merely by deciding to spend
money, the Assembly could, in practice, do almost anything, even
something wholly outside its functions, or maybe those of the
Organization as a whole. Member States would be bound to contri-
bute, and accordingly a degree of power, if not unlimited, certainly
much greater than was ever contemplated in the framing of the
Charter, would be placed in the hands of the Assembly. In this way,
there could well come about an actual realization of the fears
expressed in one of the written statements presented to the Court,
possibilities which, otherwise, are perhaps not very serious, so

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long as Member States retain at least a last resort right not to
pay *.

The problem is to determine what that right consists of and,
more particularly, in what conditions it can be exercised. As indi-
cated above, it can only be a right of last resort; for an unlimited
right on the part of Member States to withhold contributions at
will, on the basis of a mere claim that in their view the expenditures
concerned had been improperly incurred, not only could speedily
cause serious disruption, but would also give those Member States
which, on the basis of the normal scales of apportionment, are
major contributors, a degree of control and veto over the affairs of
the United Nations which, equally, can never have been intended
in the framing of the Charter to be exercised by these means, or
Article 17, paragraph 2, would not be there.

This brings me to the second element in the solution propounded
by the Court, and on this aspect of the matter I can concur. The
solution is not technically a final one, for as things are at present,
means continue to be lacking whereby, in the case of controversy,
a decision binding both on the Organization and on Member States
can be obtained. In practice the proposition involved will help
towards producing a de facto solution. To state it in my own way—
when, on the basis of an item which has been regularly placed on
the agenda, and has gone through the normal procedural stages, the
Assembly, after due discussion, adopts by the necessary two-thirds
majority, a resolution authorizing or apportioning certain expendi-
tures incurred, or to be incurred, in the apparent furtherance of
the purposes of the Organization, there must arise at the least a
strong prima facie presumption that these expenditures are valid
and proper ones. Unless that is so, a potentially unworkable situation
exists; but clearly it must be so, and in consequence (subject to the
points discussed in Section VIII below), an apportionment by the
Assembly has, initially at least, the effect that Member States
become obliged to pay their apportioned shares. This is because, if
such a presumption arises, it must in principle continue to exist
unless and until it is rebutted and the contrary position is established,
by whatever means it may be practicable to have recourse to—any
consequential financial adjustments being effected later. Only if

6 It is often said that there is a safeguard in the fact that, under Article 18 of
the Charter, financial resolutions require a two-thirds majority (though even so,
a possible minority of about 35-40 States would be a serious matter). But what
Article 18 actually mentions is not “financial resolutions’, but ‘‘budgetary ques-
tions”. Does this mean simply the ordinary budget and the expenses included in it?
If the expression did ot include other expenses, then the Assembly could in several
classes of cases, by a bare majority vote, impose financial liabilities on a minority
of over 50 States—which in a few years may be one of over 60 States.

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the invalidity of the expenditure was apparent on the face of the
matter, or too manifest to be open to reasonable doubt, would such
a prima facie presumption not arise.

V

It is now necessary to consider the first of the questions mentioned
in the second paragraph of the preceding Section; for the simple
fact that expenditures are valid, or anyhow not invalid, does not
necessarily, or of itself, make them “‘expenses”’ of the Organization.
It depends on what is properly to be understood by the notion of an
expense. To give a quick illustration, it could be argued (I shall
discuss the merits of the argument later) that while expenditures
incurred in the discharge of functions which the Organization has a
duty under the Charter to perform (for instance the functions of a
peace-keeping character involved in the present case) are un-
questionably in the nature of expenses, expenditures incurred in the
performance of activities of a merely permissive kind, which the
Organization has a faculty, but no positive obligation, to carry out,
do not have that character, although they might be perfectly
proper expenditures. In cases coming under the latter head, there-
fore, it might be contended that if the Organization decides upon
such an activity, it must look to voluntary contributions from
Member States, or other sources of income available to it, in order
to finance the activities’, and cannot claim contributions as a
matter of obligation under Article 17, paragraph 2, of the Charter.

Another illustration would be if, at the invitation of one or more
Member States (as can happen), the Organization engaged in some
activity, or assumed some function, quite outside the normal scope
and framework of the Charter. Such action would not be illegal if
it was carried out with the consent of all the States affected by it;
nor would the resultant expenditures be invalid. But they would,
ex hypothesi, not be expenditures contemplated or provided for by
the Charter. Despite their “non-invalidity” therefore, they could
not rank as ‘‘expenses of the Organization” within the meaning of
Article 17, paragraph 2, to which all Member States would be obliged
to contribute, irrespective of how their votes had been cast in
relation to the resolutions authorizing the expenditures in question.
Member States cannot, in my opinion, be bound to contribute to
expenditures incurred outside the scope and framework of the
Charter (even if these are not illegal zn sé), except by their specific
consent given ad hoc in relation to the particular case. Article 17,
paragraph 2, does not, as such, extend to such a case. “Non-

7 This is what in fact occurs in many cases—see as indicated in footnote 5 above.

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invalidity”’ does not therefore, in my view, suffice of 1éself to give rise
to an obligation to contribute to given expenditure as an expense of
the Organization, irrespective of various other factors which I shall
discuss in due course. The validity of the expenditure and the
obligation to contribute to it are two distinct questions. Validity
is a condition of the obligation: it is not necessarily a sufficient
condition.

Equally, if the matter is looked at in a more general way, it is
not the case that the genus ‘‘expense” can be simply equated with
“expenditure’’ or “disbursement”, i.e. anything that is in fact
paid out. In the technical sense, and in the normal acceptation of
the term, ‘‘expenses” are expenditures of a kind which, under
private law, would be “recoverable”. For instance, in contracts of
employment, it is very usual to find a clause saying that the em-
ployee will receive such and such a salary, “plus expenses’; but it
is well understood that this does not mean any and all disburse-
ments or expenditures the employee may choose to make in the
course of carrying out his functions, but only such as are reason-
able and necessary, and have been incurred in the normal course of
business, This is really inherent in the whole idea of an expense,
and must be read into Article 17, paragraph 2, despite the absence
of any express qualification; for after all, the Organization, by
apportioning the expenditures concerned, is, in effect, seeking to
recover them from the Member States.

Taking account of these considerations, an attempt can now be
made to ascribe some content to the notion of “expenses of the
Organization”. The Court has declined to give any definition of
this term. I agree that a definition as such is not called for, and
would in any case be difficult. But short of a definition, I think it
useful to indicate the main types of expenditures which, assuming
them to be valid and legitimate, would fall within the normal
conception of what constitutes an expense, and would therefore be
“expenses of the Organization”. Such expenditures would, it
seems to me, include the following (I will simply indicate them
without giving any reasons, as these are self-evident) :

A. All those expenditures, or categories of expenditures, which
have normally formed part of the regular budget of the
Organization, so that a settled practice (pratique constante)
of treating them as expenses of the Organization has become
established, and is tacitly acquiesced in by all Member States.

B. In so far as-not already covered by head A:

I. administrative expenditures;

IT. expenditures arising in the course, or out of the perform-
ance by the Organization of its functions under the
Charter ;

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III. any payments which the Organization is legally respon-
sible for making in relation to third parties; or which it is
otherwise, as an entity, under a legal obligation to make;
or is bound to make in order to meet its extraneous legal
obligations.

In head B II however, the words “... arising ... out of the perform-
ance by the Organization of its functions under the Charter”
conceal a difficulty which will be discussed in the last Section of
this Opinion; and in any event these words do not include the case
noticed above, where the Organization may, by invitation, engage
in activities, or assume functions, outside the scope and framework
of the Charter, even if, by reason of such invitation, no illegality
arises. Action outside the Charter can well not involve any breach of
general international law; and even if it otherwise would, may be
validated in various ways. It does not thereby become Charter
action, or the expense of it a Charter expense attributable to
Member States.

VI

I come now to the third and last of the questions mentioned in
the second paragraph of Section IV above, which is the one that has
caused me the most difficulty in this case. It is not dealt with in
the Opinion of the Court, because the Court has proceeded on the
basis that once it is established that certain expenditures constitute
“expenses of the Organization’’, it follows necessarily and auto-
matically that every Member State is obliged to pay its appor-
tioned share of these expenses in all circumstances. It can however,
or it may be argued, that there are circumstances in which this
would not be the case; and it seems to me essential to state, and to
deal with this argument, if only to indicate how far and in what
respects it is incorrect. Just as, in my view (see Section V), the
notions of “validity” and “obligation to contribute” are not neces-
sarily coincident, so also is it to me far from automatically self-
evident that the notions of “expense” and ‘obligation to contribute”
are tpso facto identical, though they are clearly closely related. I
must therefore examine the matter.

Before coming to grips with this problem however, it is necessary
to notice certain peculiarities about Article 17, paragraph 2, and
to consider what is the exact role played by that provision in the
financial set-up of the United Nations.

It is always a useful exercise when the interpretation of a given
provision in the context of a whole instrument is in question, to
consider what difference it would make if that provision did not
figure in the instrument at all. It is only necessary to ask what the

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position would have been if Article 17, paragraph 2, had not in
fact been inserted in the Charter, in order to see at once that the
obligation of Meinber States collectively to finance the Organization,
by one means or another—the obligation of principle that is—cannot
be dependent, on the existence of Article 17, paragraph 2. It must
in any case arise as a matter of inherent necessity. An Organization
such as the United Nations cannot function without funds, and
thereis no other quarter from which, as a matter of obligation (and
nothing short of obligation suffices) funds could come, except from
the: Member States themselves. Without finance, the ‘Organization
could not. perform its duties. Therefore, even in the absence of
Article 17, paragraph 2, a general obligation for Member States
collectively to-finance the Organization would have to be read into
the Charter, on the basis of the same principle as the Court applied
in the Injuries to United Nations Servants case, namely “by neces-
sary implication as being essential to the performance of its [1.e.
the Organization’s] duties” —(I.C.J. Reports 1949, at p. 182). Joining
the Organization, in short, means accepting the burden and the
obligation of contributing to financing it.

Clearly, the independent character of the financial obligation of
Member States—the fact that it has a basis extraneous to Article 17,
paragraph 2—considerably strengthens the view, first, that the obli-
gation.does exist, and secondly that it exists at least to the extent
necessary to make the Organization workable. So much is scarcely
open to doubt. What might however (and in my opinion, for reasons
to be indicated, would) be open to controversy, is the exact nature
and extent of that obligation, and how it is to be carried out. In
this connection, the fact that Article 17, paragraph 2, does duly
figure in the Charter is of importarice; nevertheless the light in
which this provision has to be looked at may be affected by the
existence of the independent obligation of principle, and this aspect
of the matter must now be considered.

Were it not for the records of the San Francisco Conference for
the drafting of the Charter (to which I shall refer later) the correct
interpretation of Article 17, paragraph 2, would be that it added
nothing to the already existing inherent obligation, and went solely
to the mechanics of the performance of that obligation. It is worded
so as t@ assume or imply the basic obligation rather than to create
or express one, as it would do if for instance it read ‘The expenses
of thé Organization shall be borne by the Members, and shall be
borne by them as apportioned by the General Assembly”. The
italicized phrase is not however there, with the result that Article 17,
paragraph 2, "is elliptical, and declaratory rather than constitutive
of'the basic obligation: Having regard to the independent foundation
and-inhérent nature of the financial obligation of Member States, it
would seem that thé only real additional substantive effect of this
provision (taken by itself and without reference to the travaux

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préparatoires, as is the normal initial approach to any interpretative
task) is to indicate the organ, namely the General Assembly, which
is to decide on the apportionment of the expenses as between the
Member States, and also to make it clear that these States must
accept the apportionment so determined. This view of the effect
of Article 17, paragraph 2, if that provision is considered per se,
is further supported by the points mentioned in the footnote
hereto ®. Consequently it seems to me incorrect to say, as has some-
times been suggested, that the exercise of the power of appor-
tionment by the Assembly creates the obligation. This is surely
putting the cart before the horse. Apportionment is merely a
condition precedent of the obligation having to be carried out:
It quantifies the content of it; but the obligation itself is an ante-
cedent one, and without it, the apportionment would lack legal
effect, or would amount merely to an invitation to contribute the
indicated share on a voluntary basis.

It follows, in my opinion, that there is a sufficient element of
ambiguity about the exact intention and effect of Article 17, para-
graph 2, to make its interpretation on the basis of the rule of the
“natural and ordinary meaning” alone, unsatisfactory. In these
circumstances it is permissible to have recourse to the preparatory
work of the San Francisco Conference. Reference to this source
indicates that the words ‘shall be borne by the Members as appor-
tioned by the General Assembly’, rather than some phrase such as
“shall be allocated to the Members in such shares as the Assembly
may determine”, were deliberately employed with the object of
ensuring that what was called “‘a clear statement of the obligations
of Members to meet the expenses of the Organization” should be
found in the Charter itself — (Document 194 in the Dossier supplied

8 Whereas no express provision was necessary in order to create a general liability
of principle for Member States to bear the costs of the Organization, which would
have existed in any case as a matter of inherent necessity, an express provision did
have to be introduced in order to provide for the method of apportionment; and
also to oblige Members to pay the share allocated to them, and not assert a right
to pay a smaller share. Without an express provision on these points there would
have been endless debate, and no organ of the United Nations would have been
invested with any clear right of decision. In exactly the same way, the first para-
graph of Article 17 is also essential, in order to make it clear that it is the Assembly,
and not some other organ, such as the Security Council, which adopts the budget
of the Organization. The lack of corresponding provisions in the Covenant of the
former League of Nations led to great difficulties in the early years of the League,
and eventually necessitated an amendment of the Covenant. A further indication
that Article 17 is directly concerned with the mechanics of the obligation to con-
tribute, rather than with the obligation itself, is afforded by the fact that it figures
in Chapter IV of the Charter, which deals with the functions of the General Assembly.
If the main purpose of the Article was to make clear the responsibility of Member
States for bearing the costs of the Organization, it should have figured in some
more general chapter, and not among the functions of the Assembly. Without
reference to the San Francisco records, the deduction would be that the subject
of the Article was the financial powers of the Assembly rather than (except indi-
rectly) the obligations of Member States.

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210 EXPENSES U.N. (SEP. OP. SIR GERALD FITZMAURICE)

to the Court by the Secretary-General of the United Nations,
PP. 9-13, passim) °. If the language used was not in fact very apt
for the purpose of embodying such a ‘clear statement”, the exist-
ence of the intention at any rate is clear, and for reasons which
I shall presently give, it is important that there should be no doubt
about that intention.

Vil

I propose now to consider the difficulty I mentioned earlier—the
question whether, if given expenditures are duly expenses of the
Organization, an obligation for every Member State to contribute
to them as apportioned arises in all circumstances. The core of the
difficulty is how to reconcile the obligatory character of the liability
to meet the expenses of the Organization with the non-obligatory
character of. many, indeed most, of the resolutions under which
these expenses are incurred. To me, it has not seemed self-evident
that Article 17, paragraph 2, on its actual wording, necessarily or
automatically disposes of this difficulty; and unless it can be dis-
posed of satisfactorily, the affirmative reply given to the question
addressed to the Court must be less convincing than it ought to be.

There is clearly no problem in the case of decisions of the Security
Council which, under Article 25 of the Charter, are binding on
Member States, even on those Members of the Council which voted
against them, and equally on those Members of the Assembly which,
not being Members of the Council, ex hypothesi did not vote at all.
Therefore, even in the absence of Article 17, paragraph 2, all these
Member States would be obliged to meet the expenses of carrying
such decisions out. But many Security Council resolutions only have
a recommendatory intention and effect, and this is in principle also
the case with most Assembly resolutions. If however a Member State
has voted in favour of such a resolution, or, by abstaining, has not
manifested opposition to it, it is reasonable to regard either of
these attitudes, not indeed as involving any formal obligation for
that Member State itself to carry out the resolution, operationally,
but as indicating approval of, or at any rate tacit acquiescence in,
its being carried out by those Member States which are ready to do
so; and also (and quite apart from Article 17, paragraph 2) as im-
plying willingness to contribute to the expenses of carrying 1t out—
although as regards the effect of abstentions, it would be better to
put the matter on the basis that a Member State which does not
vote against a given resolution, can scarcely object if it is called
upon to pay its share of the resultant expenses.

° It is also clear from the records that the inappropriateness of putting the
basic financial obligation of Member States amongst the functions of the Assembly
was realized. It was apparently left there because no better place could be found
for it.

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Similar considerations can hardly apply to the case of a vote
which does go to the length of being cast against the resolution
concerned—a resolution which is in any case purely recommen-
datory. Certainly it would seem at first sight an odd position that
a Member State which is not itself bound to carry out such a reso-
lution, and which has manifested disapproval of its being carried
out at all by anyone, should nevertheless be legally obliged to
contribute to the expenses of executing it. Here therefore is a case
in which, in order to justify the conclusion that a Member State in
this position is nevertheless bound to contribute its apportioned
share, reliance on the inherent obligation of Member States to meet
the costs of the Organization might not be sufficient; for that obli-
gation is an obligation of principle only. It would not necessarily
extend to or cover every case. A Member State which had voted
against a resolution having only a recommendatory effect could,
in the absence of express language figuring, or to be deemed to
figure, in the Charter itself, very plausibly argue that the obligation
did not exist for it in the particular case, especially with refer-
ence to certain types of activities—(see Section VIII below).
It is therefore important that the records of the San Francisco
Conference—even if the language used for the purpose was not
particularly felicitous—do indicate that the intention to impose a
definite financial obligation on Member States was there. Looking
at the matter as a whole, I think that (with the possible exception
of the class of case considered in Section VIII below) this intention
must be deemed to have extended to covering the payment by
Member States of their apportioned shares, irrespective of how their
votes were cast on any given occasion, at any rate as regards all
the essential activities of the Organization, and even if they have
no formal legal obligation to join in carrying out the activities to
which the given expenditures relate. (In the case of inessential
activities, the position is more complicated, and I consider this in
the final section of this Opinion.)

In reaching this conclusion, it is material to take account of the
following factor: those who framed the Charter deliberately broke
away from the fundamental voting rule of the former League of
Nations (unanimity—see Article 5, paragraph I, of the League
Covenant), and they adopted for the United Nations a majority
voting rule. In an Organization which has never numbered much less
than 50-60 Member States, and now numbers over 100, no other
rule than a majority one would be practicable. But a majority voting
rule is meaningless unless, although the States of the minority are
not formally bound as regards their own action, they at least cannot
prevent or impede the action decided on from being carried out

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aliunde. This they obviously could do if they had a species of veto,
the exercise of which, through the refusal to contribute financially,
would enable them to prevent or seriously impede the action
concerned.

The same conclusion can be reached in another way, for if there
is, on the one hand, a general position under the Charter according
to which certain resolutions have no formally obligatory character —
doubly not so for those who vote against them—there is also, on the
other hand, a special provision, Article 17, paragraph 2, obliging Mem-
ber States to contribute to the cost of carrying these resolutions out,
in so far as these costs duly rank as expenses of the Organization.
To this situation the rule generalia specialibus non derogant must
apply, so that in spite of the general element of non-obligation
under these resolutions, the special obligation to contribute to the
expenses incurred in carrying them out prevails, and applies even
to Member States voting against. There is in short no substantive
conflict.

This position was aptly compared, by one of the representatives
of Governments at the oral hearing, to that of a member of the
public who cannot be compelled physically to join in constructing
a public edifice but can, through the medium of ordinary taxation,
be made to contribute to the cost of having it constructed by others.
Another comparison, perhaps even closer, would be that of member-
ship of a club. If the Committee or governing body of a club decides
to acquire additional premises, or to extend the club’s activities, or
otherwise to increase expenditure, and this necessitates raising the
annual subscription, or in some other manner involves financial
liabilities for members, and this decision is ratified by a general
meeting of the members, the latter, irrespective of how they voted,
must pay accordingly, or resign their membership.

VIII

I have mentioned the existence of a class ot case to which,
possibly, the foregoing considerations would not apply, and regard-
ing which there may be room for some real doubt whether any
financial obligation can arise, at least for Member States voting
against the resolution concerned in any given case. In the normal
case, a resolution provides for certain action to be taken by the
Organization, either throtigh such of the Member States as are
willing to participate, or through the medium of the Secretary-
General or of some other agent or agency. In these cases, despite
the obligation to contribute to the resultant expenses, the resolution
retains its fundamentally non-obligatory character; for if the
Member States are obliged to contribute financially, they are not

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obliged to participate in the operational carrying out of the sub-
stantive activities provided for in the resolution. Where however
the ‘‘action” to be taken under the resolution consists solely of
provision for making a payment or financial contribution (e.g. for
some purpose of aid or relief), so that the making of this payment
or contribution is not merely a means to an end—viz. enabling the
resolution to be carried out—but the end itself, and the sole object
of the resolution, it is evident that if the payment or contribution
concerned is to be treated as one to which even Member States which
voted against the resolution must contribute by reason of Article 17,
paragraph 2, the resolution acquires in practice a wholly obligatory
character—since it does one thing only, and Member States are
bound, or would be bound, to do or contribute to doing that one
thing. In this connexion, it is significant that the actual practice
of the Assembly (and the Court has drawn considerable inspiration
from this source), has been to finance expenditures falling within
this class of case, mainly by calling for voluntary contributions from
Member States. Examples are the activities (or most of them) for
which budgetary provision is made under such heads as those of
“Trust Funds” and “Special Accounts’”—for instance the U.N.
Special Fund, UNKRA, UNSCO, EPTA, UNRWA, UNICEF, the
U.N. Fund for the Congo, and the U.N. Congo Famine Fund.
No doubt special considerations applied in some of these cases;
still, the fact remains that contributions were not claimed as a
matter of actual obligation.

The same point arises in another way, in relation to head B II
in the list of expenditures ranking as expenses of the Organization
given at the end of Section V above. What expenditures precisely
should this head B II be regarded as covering? There are broadly
two main classes of functions which the Organization performs under
the Charter—those which it has a duty to carry out, and those
which are more or less permissive in character. Peace-keeping,
dispute-settling and, indeed, most of the political activities of the
Organization would come under the former head; many of what
might be called its social and economic activities might come under
the latter. Expenses incurred in relation to the first set of activities
are therefore true expenses, which the Organization has no choice
but to incur in order to carry out a duty, and an essential function
which it is bound to perform. Therefore the principle enunciated
by the Court in the Injuries to United Nations Servants case, and
mentioned earlier, applies: 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’ (citation on p. 208 above).
Even without Article 17, paragraph 2, the Organization could
require Member States to contribute to these expenses.

66
214 EXPENSES U.N. (SEP. OP. SIR GERALD FITZMAURICE)

It is less clear that any similar power exists to require Member
States to meet the costs incurred in performing merely permissive
activities carried out under non-binding resolutions. There certainly
would be no such power without Article 17, paragraph 2—at least
not as regards Member States which voted against the resolution
giving rise to the expenditure concerned; and even with the assis-
tance of Article 17, the position is not entirely clear. There is-a
definite distinction, inasmuch as where the activities involved are
such as the Organization has a duty to carry out, non-contnbution
by a Member State would be fundamentally inconsistent with that
State’s membership, as being calculated to prevent or. gravely
impede the performance by the Organization of an essential func-
tion. Where the costs of permissive, or non-essential activities are
concerned, there is no correspondingly clear-cut inconsistency,
and there must remain a question whether, in this type of case,
Article 17, paragraph 2, is sufficient to give rise to a financial obli-
gation for the dissenting voter. If it is sufficient, then it would follow
that, in theory at least, the Assembly could vote enormous expen-
ditures, and thereby place a heavy financial burden even on dissent-
ing States, and as a matter of obligation even in the case of non-
essential activities. This would be reading a lot into such a provision
as Article 17, paragraph 2. In this connexion, it must be borne in
mind that, if a two-thirds majority is required for the adoption of
financial resolutions, the present scales of apportionment cause a
major part of the resulting contributions to fall on a comparatively
small minority of the Member States. As has already been men-
tioned, the existence here of a genuine difficulty seems to have been
recognized in practice within the Organization, inasmuch as the
cost of a large part of these permissive activities is met from
voluntary contributions 1.

To set against these considerations, there is the fact that it would
not be easy to draw a hard and fast line between necessary, essential
and obligatory functions of the Organization, on the one hand, and
merely optional, non-essential and permissive ones on the other.
Changing concepts also are involved. Today, the humanitarian
and aid-giving functions of the Organization are, if less imperative,

3° T have already given it as my view (see Section V above) that no financial
obligation arises where the Organization acts outside the ambit of the Charter,
even if (because it has been invited to do so, and confines its action to consenting
States) no illegality is involved. But in these cases, the lack of obligation derives
not so much from the casting of a contrary vote, as from the fact that, in my opin-
ion, the expenditures involved would not properly speaking be “expenses of the
Organization” within the meaning of Article 17, paragraph 2, at all.

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215 EXPENSES U.N. (SEP. OP. SIR GERALD FITZMAURICE)

hardly less important than its political functions, and may well
contribute materially, or even be essential, to the success of the
latter.

For the purposes of the present Request it is not necessary to
express any final view about these points, but I have thought it
useful to draw attention to them. There is moreover at least one
case of this kind as to which I feel no doubt about the obligation to
contribute, irrespective of how a Member State’s vote has been cast.
It has been suggested by some of those who deny all validity to
peace-keeping activities organized by the Assembly, that (on the
analogy, as I suppose, of the well-known Prize Law doctrine of
“infection’’) even civil expenditures in the nature of technical
assistance, famine relief, etc., given to any country contempo-
raneously and in connexion with such peace-keeping activities (as
is the case under some of the resolutions now involved) become,
by a process of association, ‘‘tainted’’, as it were, with the same
invalidity as is alleged to exist for the peace-keeping activities
themselves. I take a view which is the exact antithesis of this, and
applies the doctrine of ‘‘infection” in reverse. Even if it should be
the case (and on this I do not express any final view) that there is
no positive obligation to contribute to the expenses of carrying out
social and economic activities of a permissive character (except for
Member States supporting or not opposing the activity concerned),
I consider that where such an activity is closely connected with,
arises out of, and, in short, is basically part of a peace-keeping
endeavour, and necessary for, or directly contributory to the
success of that endeavour, the activity in question takes on the
nature of an essential activity, the expenses of which are expenses
of the Organization to which all Member States are bound to contri-
bute, irrespective of their votes.

Consequently, my concurrence in the Opinion of the Court extends
no less to the civil than to the military expenditures incurred under
the Resolutions specified in the Request.

(Signed) G. G. FITZMAURICE.

68


COUR PERMANENTE DE JUSTICE INTERNATIONALE

SERIE AIB
ARRETS, ORDONNANCES ET AVIS CONSULTATIFS

FASCICULE N° 58

AFFAIRE CONCERNANT LA RÉFORME AGRAIRE

POLONAISE ET LA MINORITÉ ALLEMANDE
(MESURES CONSERVATOIRES)

ORDONNANCE DU 29 JUILLET 1933
XXIXm SESSION

1933

XXIXth SESSION
“ORDER OF JULY 29th, 1933

PERMANENT COURT OF INTERNATIONAL JUSTICE

SERIES A./B.
JUDGMENTS, ORDERS AND ADVISORY OPINIONS

FASCICULE No. 58

CASE CONCERNING THE POLISH AGRARIAN

REFORM AND THE GERMAN MINORITY
(INTERIM MEASURES OF PROTECTION)

SOCIETE D’EDITIONS A, W. SIJPHOFF’S

LEYDE LEYDEN
A. W. SIJTHOFF PUBLISHING-COMPANY
175

PERMANENT COURT OF INTERNATIONAL JUSTICE

ORDER MADE ON JULY 29th, 1933. jan

General List:
No. 60.

TWENTY-NINTH (EXTRAORDINARY) SESSION.

July 29th, 1933.

CASE CONCERNING THE POLISH AGRARIAN
REFORM AND THE GERMAN MINORITY

(APPLICATION FOR THE INDICATION
OF INTERIM MEASURES OF PROTECTION.)

Present: MM. ADATCI, President; GUERRERO, Vice-Presi-
dent; Baron ROLIN-JAEQUEMYNS, Count Rost-
WOROWSKI, MM. FROMAGEOT, ANZILOTTI, URRUTIA,
Sir CEcIL Hurst, MM. SCHÜCKING, NEGULESCO,
Jhr. van Eysinca, M. Wane, Judges.

The Permanent Court of International Justice,
composed as above,
Makes the following Order :

Having - regard to Articles 41 and 48 of the Statute,
Having regard to Article 57 of the Rules of Court,

Whereas by an Application of July 1st, 1933, filed with
the Registrar of the Court on July 3rd, the German Govern-
ment, availing itself, in its capacity as a Member of the
Council of the League of Nations, of the right conferred upon
it by Article 12 of the Treaty between the Principal Allied
and Associated Powers and Poland, signed at Versailles on.
June 28th, 1019, brought before the Permanent Court of
International Justice a suit against the Polish Government

4
POLISH AGRARIAN REFORM 176

concerning the application of the agrarian reform to the
German minority in the voivodeships of Posnania and Pome-
relia, and kindred questions ;

Whereas, in the said Application, the subject of the dis-
pute is described in the following terms:

“The German Government holds that the Polish Government
has acted inconsistently with the obligations assumed by it under
Articles 7 and 8 of the Treaty of June 28th, 1919, by discriminat-
ing against Polish nationals of German race of the voivode-
ships of Posnania and Pomerelia, in the carrying out of its agrarian
reform, particularly in the application of its agrarian reform
law of December 28th, 1925, as also in the application of the
decree of the German Bundesrat of March 15th, 1918; concerning
authorization of the transfer of estates, and of the Prussian decree
of December 23rd, 1918, regarding the State’s right of pre-emption
as confirmed and amended by the decree of the Commissariat of
the Supreme Council.of the Polish nation of June 25th, 1919, by
the decrees of December zgth, 1919, and of June 18th, 1920,
and by the law of June 23rd, 1921. .

The German Government also considers that Poland has no
fulfilled the obligations incumbent upon it in this respect under
Article x of the Treaty of June 28th, 1919.”

Whereas, in the Application, the “‘claim’’ is formulated as
follows :

“The German Government requests the Permanent Court of
International Justice to declare that violations of the Treaty
of June 28th, 1919, have been committed to the detriment of
Polish nationals of German race and to order reparation to be
made”’ ;

Whereas, by letter of May 26th, 1933, the German Govern-
ment, in announcing that it would shortly file its Applica-
tion, had informed the Court that it had appointed its Agent
in the case;

Whereas, on July 3rd, 1933, the Agent of the German
Government filed with the: Registrar of the Court, together
with the aforementioned Application instituting proceedings,
a request dated July 1st “for the indication of interim measures
of protection pursuant to Article 4x of the Statute and
Article 57 of the Rules of Court”;

Whereas, in this request, ‘‘the German Government requests
the Court to indicate interim measures of protection in order
to preserve the status quo until the Court has delivered final
judgment in the suit submitted by the Application” ;

Whereas, upon receipt of this request, the Vice-President,
as Acting-President of the Court—the latter not being
in session—on July 3rd, 1933, pursuant to Article 23
of the Statute and Article 57 of the Rules of Court,

5
POLISH AGRARIAN REFORM 177

arranged for a hearing for July xzxth, in order to give the
Parties an opportunity, should they so desire, to present their
observations ;

Whereas, on July 4th, 1933, the Polish Government
informed the Court that it intended to present observations
in accordance with Article 57 of the Rules of Court, but
asked for a postponement of the hearing arranged for July 11th
until the end of the month: -

Whereas, on July 5th, 1933, the Agent of the German
Government informed the Court that that Government desired
to present observations, in accordance with Article 57, para-
graph 3, of the Rules;

Whereas the postponement sought by the Polish Govern-
ment was not granted; and as the Polish Government stated,
by letter of July oth, 1933, delivered to the Registrar on the
roth of that month, that, notwithstanding the intention it had
previously expressed, it was unable to present its observa-
tions at the hearing of the Court fixed for July rrth;

Whereas, in these circumstances, the Court, at the hearing
on July 1ith, merely adjourned until July rgth the hearings on
the request of the German Government for the indication of
interim measures of protection ;

Whereas, on July 12th, 1933, the Polish Government inform-
ed the Court that it had appointed a representative to
present its observations on the request of the German Govern-
ment ;

Whereas, at the hearings of July roth, 2oth and 21st, 1933,
the Court heard the observations and reply of M. Viktor Bruns,
Agent of the German Government, and the observations and
rejoinder of M. Th. Sobolewski, representing the Polish Govern-
ment ;

Whereas, at these hearings, the Agent of the German
Government filed the documents enumerated in the Annex ;

Whereas, under Article 41 of the Court’s Statute, ‘the Court
shall have power to indicate, if it considers that circumstances
so require, any provisional measures which ought to be taken
to reserve the respective rights of either Party”;

Whereas, according to this provision, the essential condition
which must necessarily be fulfilled in order to justify a request.
for the indication of interim measures, should circumstances
require them, is that such measures should have the effect. of
protecting the rights forming the subject of the dispute sub-
mitted to the Court;

Whereas, according to the terms of the Application insti-
tuting proceedings which have been quoted above, the subject
of the dispute is the contention of the German Government

6
POLISH AGRARIAN REFORM 178

that the latter Government has acted inconsistently with the
obligations assumed by it under Articles 7 and 8 of the Treaty
of June 28th, 1919, by discriminating against the Polish nation-
als of German race in the voivodeships of Posnania and
Pomerelia, in the carrying out of its agrarian reform, parti-
cularly in the application of the Polish agrarian law of
December 28th, 1925, and other supplementary acts;

Whereas, on the basis of this contention, which is not
admitted by the Polish Government, the German Government
has requested the Court to declare that violations of the Treaty
of June 28th, 1919, have been committed to the detriment of
Polish nationals of German race and to order reparation to
be made; .

Whereas, in accordance with the verbal explanation given
by the Agent for the German Government at the hearing on
July 19th, 1933, the German Government, by the request for
interim measures, asks the Court to indicate to the Polish
Government that it should not include other members of
the German minority in the nominal lists for expropriation,
that it should not proceed with the expropriation of the
estates of members of the German minority included in
nominal lists already published and that it should not transfer
to other persons estates taken from members of the German
minority, or establish settlers upon such estates ;

Whereas, whilst the suit brought by the German Govern-
ment is presented as having for its object to obtain a declar-
ation confirming that, as alleged by it, infractions have been
committed in certain individual cases where the measures in
question have already been applied, and, if necessary, repara-
tion in respect of such infractions, the request for interim
measures covers all future cases of the application of the
Polish agrarian reform law to the Polish nationals of German
race and aims at securing an immediate indication to the
effect that henceforth, and until judgment has been pronounced,
the said Polish law shall not be applied in respect of the said
nationals ;

Whereas, accordingly, the interim measures asked for would
result in a general suspension of the agrarian reform in so
far as concerns Polish nationals of German race, and cannot
therefore be regarded as solely designed to protect the subject
of the dispute and the actual object of the principal claim,
as submitted to the Court by the Application instituting
proceedings ;

Whereas, in these circumstances, the Court, without having
to consider the scope of Article 12 of the above-mentioned
Treaty of June 28th, 1910, as regards the indication of interim
measures of protection, and irrespective of the question whether
it may be expedient for the Court in other cases to exercise

7
POLISH AGRARIAN REFORM 179

its power to act proprio motu, and without in any way pre-
judging the question of its own jurisdiction to adjudicate
upon the German Government’s Application instituting pro-
ceedings, or the admissibility of that Application, confines
itself to the statement that the request for interim measures
now before it is not in conformity with the provisions of
Article 41 of its Statute,

THE COURT,

Dismisses the request of the German Government for the indi-
cation of interim measures of protection.

Done in French and English, the French text being authori-
tative, at the Peace Palace, The Hague, this twenty-ninth day
of July, one thousand nine hundred and thirty-three, in three
copies, one of which shall be placed in the archives of the
Court and the others transmitted to the German and Polish
Governments respectively.

(Signed) M. ADATCI,
President of the Court.

(Signed) A. HAMMARSKJÜLD,
Registrar of the Court.

Baron Rotin-JazEquemyns, M. SCHÜCKkING, and Jonkheer van
Eysinca, Judges, declare that they are unable to agree with
the Order, and append thereto the statements of their dissent-
ing opinions which follow.

M. ANZILoTTI, Judge, declares that he disagrees with the
Order to the extent which he has himself set forth in his
dissenting opinion, in the following terms.