288

DISSENTING OPINION OF JUDGE BUSTAMANTE
[Translation]

1. I am among the Judges who held the view that the question
of the conformity or non-conformity with the Charter of the United
Nations resolutions concerning the Middle East and the Congo
should be examined as being a necessary means of appraisement
in order to reply to the question put by the General Assembly in
its request for an advisory opinion, That is why I consider it neces-
sary to give an account of my line of reasoning in this matter so as
to explain my conditional reply to the request and to make the
true scope of that reply clear.

2. First of all, I should explain why I have thought that the
Court should give the General Assembly its opinion, in conformity
with Article 65 of the Statute.

It is true that a preliminary question was raised in this respect:
namely whether it was possible or not to reply to the request for
an opinion, since the text of the request relates exclusively to the
characterization of certain expenditures as “expenses of the
Organization”, implicitly excluding any pronouncement on the
part of the Court as regards the intrinsic and formal legality of the
resolutions by which those expenses were authorized. But I think
that the General Assembly’s power to determine the limits of the
questions upon which it asks an opinion is not incompatible with
the power of the Court, as master of its own reasoning, to take into
consideration all the elements of appraisement which it thinks
useful or necessary in order to arrive at a definition of its stand-
point on the question on which an opinion is asked. These elements,
having the character of reasons for the Court’s view, should not
be included in the operative part of the Opinion.

This view is in accordance with the rule that the interpretation
of one of the clauses of a treaty should be carried out by considering
that clause in the light of all the other relevant provisions of the
treaty, taken as a whole. Any limitation whatever on this point
would run counter to the principle of judicial independence.

Furthermore, the fact that the Court has communicated the
request for an advisory opinion to all the Member States in confor-
mity with Article 66 of the Statute implies, in my opinion, an obliga-
tion for the Court to consider the points of view of those States
which expressed objections to the resolutions referred to in the
request. On this point the dossier sent to the Court by the Secretary-
General of the United Nations contains abundant documentation.
The debates in the Fifth Committee and the General Assembly,

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OPIN, OF 20 VII 62 (DISS. OP. JUDGE BUSTAMANTE) 289

and the report dated 10 November 1961 of the Working Group
of Fifteen on the Examination of the Administrative and Bud-
getary Procedures of the United Nations (Document 57 of the
dossier, Part I), reveal the very serious differences of opinion which
were expressed regarding various points of interpretation of the
Charter bearing on the Middle East and Congo questions and on the
expenditures involved. An examination of the problem would be
incomplete, and the Court’s reply would risk being either fruitless
or devoid of any great utility, if these aspects of institutional reality
are not taken into account, and if no attempt is made to clear up
precisely those doubts and disagreements which led to the request
for an advisory opinion.

As I understand it, the case may be put in these terms: since the
Charter is the legal standard to which the acts of the United Nations
must conform, it follows that a study of the legality (conformity
with the Charter) of the resolutions cited in the request constitutes
an indispensable factor in the decision whether the expenditures
referred to are, or are not, ‘‘expenses of the Organization”. In the
Court’s reply an attempt is made to remain strictly within the
limited terms in which the request for an opinion has been worded;
nevertheless, in the reasoning of the Opinion the question of legality
is discussed as an essential premiss. It cannot be supposed that the
General Assembly wished to limit the Court’s freedom of judgment
by excluding absolutely from its own consideration the question
of legality. In my opinion, the General Assembly’s intention was
well stated by the representative of the Government of the United
States when, in his oral statement before the Court, he said:

“.. The Assembly ... did not mean to put to the Court a question
which it could not answer, or to place conditions upon the Court
which would prevent it from answering... From this it follows that,
if the Court should differ with the views advanced by the Govern-
ments of the United States, the United Kingdom, Australia, Ireland
and others, that the issues can properly be limited so as to avoid
passing upon the validity of the underlying resolutions, then it
is free to inquire into these broader questions.” (Oral Statements,
Pp. 131, lines 1-4 arid 26 ff.)

My conclusion, then, is that the Court can and should reply to the
request for an advisory opinion put to it by the General Assembly.

*
* *

3. I have said that a prior examination of the legality of the
respective resolutions seems to me to be absolutely indispensable
for ascertaining whether the expenditures mentioned in the re-
quest are, or are not, “expenses of the Organization”.

Among the resolutions listed in the request, it should be men-
tioned that some of them deal exclusively with the political aspects
of the two problems of the Middle East and the Congo, describing

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events in order to justify the armed action of the United Nations.
These are the basic resolutions. There are others which, on the
strength of the basic resolutions, authorize the commitment of the
Organization’s resources and prescribe the method of financing the
expenditure involved by the action taken. These are the derived
or subsidiary resolutions, The objections raised by certain States
relate to a number of resolutions in both groups.

The question of the legality or of the conformity with the Charter
of the resolutions examined covers the two aspects of formal
legality (regularity of form, quorum, votes, etc.) and the snérinsic
or substantive Jegality. The concurrence of the two factors deter-
mines the validity of the resolution.

*
* *

As to the formal legality, the objections raised by certain States
relate in particular to the Security Council resolutions concerning
the Middle East and the Congo respectively. These two series of
resolutions must therefore be examined separately.

In the case of the Middle East, the intervention of the United
Nations in Egyptian territory was ordered at the end of Octo-
ber 1956, following an appeal by the Egyptian Government.

During three consecutive meetings (Nos. 748 to 750), the Security
Council was not able to secure the unanimity of the permanent
Members for adopting a definite position as regards the invasion
of Egypt; it therefore decided (resolution of 31 October 1956) to
convene the General Assembly in an emergency special session—
in conformity with resolution No. 377 A (V) of 1950—“in order
to make appropriate recommendations”. This was agreed to by
7 votes (including the United States, the Soviet Union and China)
to 2 (France and the United Kingdom) with 2 abstentions (Aus-
tralia and Belgium).

In conformity with Article 27, paragraph 3, of the Charter, a
permanent Member which is a party to a dispute which may en-
danger the peace according to Chapter VI shall abstain from voting.
A fortiori, there must be such abstention from voting if a permanent
Member is already a party to an existing conflict involving a breach
of the peace (Chapter VII). In this case, France and the United
Kingdom were debarred from taking part in the Council’s vote,
and were under an obligation to abstain. Compulsory abstention
is, naturally, the negation of the right to veto. In such a case, the
unanimity of the permanent Members refers only to those perma-
nent Members who are duly entitled to vote in the matter or not
debarred ; the decisions being valid if taken by the legal majority
of the votes, including those of all the permanent Members who
are not debarred. Hence, the resolution of 31 October was, from a
formal point of view, properly adopted.

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OPIN. OF 20 VII 62 (DISS. OP. JUDGE BUSTAMANTE) 291

The General Assembly dealt with the matter on the basis of
this Council resolution and, in its turn, passed resolutions Nos. 997
to 1001 and 1121, inspired by the purpose of restoring peace. Since
these resolutions were adopted by more than two-thirds of the votes
(Art. 18, para. 2), their formal legality is beyond question.

* * *

The operations in the Congo began in July 1960. The Govern-
ment of the new Republic protested against the entry of Belgian
troops on Congo territory, appealing for the military help of the
United Nations to obtain their evacuation and also—according to
information supplied by the Secretary-General—to obtain assistance
so as to restore public order, which was disturbed by mutinies.
The Security Council complied with this request and adopted the
resolutions of 14 July, 22 July, 9 August and 17 September 1960
and 21 February and 24 November 1961, in which various measures
were prescribed, according to the course of events, to deal with the
international and internal situation of the country.

As to the formal conditions in which the Security Council resolu-
tions were adopted, it should be said that the resolution of 17 Sep-
tember 1960, against which one permanent Member (the Soviet
Union) voted, concerned the calling of an emergency special ses-
sion of the General Assembly. Nevertheless, at a later date, namely
21 February 1961, the Security Council reaffirmed resolution
No. 1474 (ES-IV) of 19 September 1960, adopted by the General
Assembly in the special session called by the Council. The resolu-
tion of 17 September was thus indirectly confirmed.

The Security Council’s resolution of 22 July 1960 was adopted
unaaimously. None of the other resolutions involved any. votes
against, but only abstentions. It is already well known that an un-
written amendment to the Charter has taken place in the practice
of the Security Council, namely, to the effect that the abstention
of a permanent Member present at a meeting is not assimilated to
the exercise of the right to veto +. No doubt this type of amendment
may be legally repudiated in a given case by invoking the text of the
Charter (Art. 27, para. 3), since no permanent Member has under-
taken to apply it without reservations; but in the case of the Congo,
of the permanent Members abstaining, none asserted that its ab-
stention was to be regarded as a veto. On the contrary, on two
occasions France (17 September 1960) and the Soviet Union
(21 February 1961) stated that their attitude did not mean taking
up a position contrary to the resolution. Again, China and the Unit-
ed Kingdom on three. occasions (resolutions of 22 July and

1 Georges Day: Le droit de veto dans l’Organisation des Nations Unies, Pedone,
Paris, 1952; Pierre F. Brugière: La règle de l’unanimité des Membres permanents
au Conseil de Sécurité — Droit de veto, Pedone, Paris, 1952.

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g August 1960 and 21 February 1961) obliterated, by subsequent
favourable votes, any traces of their original abstention of 14 July,
although indeed the United Kingdom did renew its abstention on
24 November 1961. The Soviet Union voted for four resolutions
and abstained with regard to that of 21 February 1961, considering
it not strong enough, although useful up to a certain point. The
only country which maintained its abstentionist line was France,
except at the meeting of 22 July 1960, when she voted for.

The impression in law and conscience given by this vote is that
the Security Council’s resolutions in the case of the Congo are not
devoid of formal legality, and that the resolutions of more recent
dates in fact ratify the earlier ones, by continuing the course of
armed action.

With respect to the “‘basic” resolutions of the General Assembly,
1599 (XV), 1600 (XV) and 160r (XV), all of them dated 15 April
1960, they deal with the carrying out of the Security Council’s
resolutions within the scope of the objectives laid down by the
latter organ. This is also the case with the first resolution 1474
(ES-IV) of the General Assembly, of which I have already spoken
and which was ratified by the Security Council. All these Assembly
resolutions were approved by two-thirds of the Members present
and voting, in conformity with Article 18, paragraph 2, of the Char-
ter. The formal aspect has thus been observed.

*
* *

4. The chief objections made by certain States as regards the
intrinsic or substantive legality may be summed up as follows:

(a) The Charter—it is said—has been violated because in the
case of the Middle East it was not the Security Council but the
General Assembly which took the decision to undertake armed
action, in contravention of Articles 39 to 43 of the Charter.

I have already explained how the Egyptian question was refer-
red by the Security Council to the General Assembly. Can the Secu-
rity Council so delegate or transfer its functions? Speaking in gene-
ral terms, the reply is clearly negative, because that would upset
the ‘‘spheres of competence” which the Charter has laid down for
these two organs. But in this particular case a really exceptional
situation, and one not provided for in the Charter, had arisen, by
reason of the obvious incapacity of two permanent Members of the
Council. The Council evidently thought that it could not take action
freely with respect to or against the interested parties without
provoking a dangerous breach within the organ, making its inter-
vention ineffective. Faced with this problem, what the Council did,
in my opinion, was not to delegate its functions but to return to
the Organization the mandate which the latter had conferred upon
it under Article 24 of the Charter. The principal reassumes the

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exercise of his powers when the agent renounces his mandate or is
prevented from exercising it. Thus, as a body representative of all
the Member States, the Assembly would be reassuming the exercise
of the competence and the resppnsibility conferred by them on the
Security Council under Article 24.

Thus the intervention of the General Assembly may be said to
have begun and continued by virtue of a case of force majeure,
namely the impossibility acknowledged by the Security Council of
carrying out its responsibilities in respect of a conflict to which
two permanent Members were parties. If account is taken of the
fact that the Organization was then faced with this dilemma:
either passively to allow the occupation of Egypt to be accomplish-
ed, or to adopt urgent measures to preserve peace and put an end to
hostilities, it would seem that the Assembly’s active intervention
may be justified since the Organization was obliged to fulfil the
principal purposes of its existence under Article 1 of the Charter.

To sum up, I think that the United Nations intervention in the
case of the Middle East derives from resolutions which are intrin-
sically valid from the point of view of the competence of the organ
concerned. Although the Security Council did not take part in the
matter, there were quite exceptional reasons which justified the
General Assembly’s intervention. The latter was therefore compe-
tent to act. This holds for the period from 31 October to 24 Novem-
ber 1956, the date of the last basic resolution No. 1121 in the dos-
sier. As from that date, the situation needs to be considered from
a new point of view. Since the United Kingdom and France agreed
to abandon their armed action against Egypt and to withdraw
their forces, the bar to their participation as permanent Members
of the Security Council no longer existed, and the Council therefore
became once more the competent organ to take decisions. concern-
ing the functioning of the Emergency Force and the continuation of
United Nations action in the Israel-Palestine question. So far as I
know, the Security Council did not intervene; perhaps by virtue of
the theory of the non-applicability of Article 43 of the Charter and
of the competente of the Assembly to act in respect of actions not
of an enforcement nature. But this question will be dealt with fur-
ther on.

(5) Another question closely related to the foregoing refers to
the spheres of competence of the Security Council and the General
Assembly from the point of view of action for the maintenance of
peace. It is the Security Council—it is said—which .is the only
organ having the right to take action (Articles 24; 35, para. 3; and
39-43). The General Assembly is expressly forbidden to take action
(Article 11, para. 2, last part; and Article 35, para. 3). In this
respect the Assembly only has the power to discuss or make rec,
ommendations (Articles 10; II, para, 2; and 14) and to call the
Security Council’s attention to situations which seem to be danger-

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ous (Article 11, para. 3). Nonetheless—it is alleged—in the case of
the Middle East it was the Assembly which took the responsibility
for authorizing the military action and, further, which created a
special United Nations Emergency Force to carry out the operation,
although this step was not expressly provided for in the Charter.
In the case of the Congo, while it was the Security Council which
decided on military assistance under the supervision of the Secre-
tary-General, it was the General Assembly which undertook the
application of this measure regarding the support and financing of
ONUC, the latter being an auxiliary force not provided for in the
Charter.

With regard to these observations, an interpretation is required
of the sense in which the word “action’’ is used in the provisions
of the Charter. |

It may be mentioned that, in other fields, the General Assembly
may take certain clearly defined actions, for instance the admission
of new Members (Article 4), the suspension and expulsion of a
Member (Articles 5 and 6), the performance of functions with re-
spect to the international trusteeship system (Article 16) or the
Economic and Social Council (Articles 18 and 86 ff.), and admini-
strative and budgetary questions (Article 17).

It remains to be considéred whether there are other examples of
actions which the Assembly might take, without violation of the
Charter, in the peace-keeping field.

In Article 11, paragraph 2, the Charter adds no adjective to the
word “action’’, no qualification indicating the specific character of
the Security Council’s action. What then is the nature of the action
which the Charter entrusts to the Council as something within its
exclusive competence, as something prohibited for the Assembly
under Article 11, paragraph 2, and Article 35, paragraph 3?

It may at once be said that the action allotted to the Council is
not exclusively military action. I base myself on the text of Article
35, paragraph 3, which refers to the pacific settlement of disputes
(Chapter VI of the Charter). Here, no actual conflict has yet taken
place, no factual situation which calls for the use of armed force; it
is so far only a matter of disputes which in the future, possibly a
distant future, might lead to a threat to the peace. Nonetheless, in
such cases, it is the Council and not the Assembly (Article 35,
para. 3) which is to take action, not indeed military action, but
good offices, mediation, invitation to arbitrate or submit for inter-
national judicial settlement, etc., all of which are strengthened by
a certain moral compulsion (Article 33 et seg.).

If military action is not the only type of action within the power
of the Council, what then is the type of action which the Charter
confers on the Council and what are its distinguishing features? It
would be possible to attempt to elaborate a theoretical conception

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which might enable the General Assembly to embark on a course
of action. The solution may perhaps be found in Articles 1 (para. 1),
2 (paras. 2, 3, 4, 5), 5,6, 24 (paras. I and 2), 33, 36 (para. 3), 37, 30-44
and 48 of the Charter. All these provisions imply on the part of
Member States certain partial and contractual renunciations in
respect of the exercise of their own sovereignty—which indeed is
fully recognized by Article 2 (paras. 1 and 7)—in the interests of
international co-operation and peace. Furthermore, some of these
articles imply on the part of States Members the a priori recogni-
tion of the Organization’s rights to exercise upon them its commi-
natory authority to compel them to fulfil the obligations of the
Charter. This authority runs from moral pressure (Article 33,
para. 2; Article 36, para. 1; Article 37, para. 2), through economic
and diplomatic pressure (Article 41), to preventive armed inter-
vention (Article 42) and the use of force (Article 43). All this
comprises enforcement action under its two aspects of prevention or
imperative admonition, and punishment. Such is the gravely re-
sponsible function which the Charter has entrusted to the Security
Council, where the five Great Powers of the world have permanent
seats. Only in the case of Articles 5 and 6 (institutional punish-
ment) is the principle mitigated and does the Assembly take part,
side by side with the Council, in the punitive function.

Seeking to establish the difference between this power of action of
the Security Council and the powers of the General Assembly, I
would say that the latter are of a kind to respect always and under
all circumstances the limitations imposed by State sovereignty;
and that is why the Assembly’s role is confined to discussions,
petitions, recommendations and actions of limited scope. But when
a crisis in the matter of peace occurs, the international community
finds itself in an abnormal situation; and then, by virtue of the con-
tractual rules of the Charter, the sovereign interests of particular
States come below the more fundamental interests of the com-
munity, and the Security Council has the power to resort to com-
pulsion and even to force so as to restore order.

This interpretation of the meaning of the action which the Charter
mentions as one of the attributes of the Security Council simplifies
the solution of problems affecting the maintenance of peace. The
Council’s action presupposes the existence of a State which has
committed an infringement, and hence the possibility of an autho-
ritaiive or comminatory decision by the Council. There is in addi-
tion, in these serious cases, lack of compliance on the part of the
infringing State, and consequently enforcement action against it,
including the use of force. At this stage, the consent of the State
which is responsible is ignored, and the Council may act against
the will of that State.

If this interpretation can be accepted, it is easier to understand
the General Assembly’s attitude in the case of the Middle East, as

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expressed and explained in the Secretary-General’s reports !. No
doubt, if military assistance had been asked for by the Egyptian
Government, if France and the United Kingdom had agreed to
abandon their policy of force, and if Israel had stopped its invasion,
then the action undertaken by the United Nations would not, it is
asserted, have involved real belligerence against a State within the
meaning of Article 43 of the Charter, but would—by mutual agree-
ment—have becôme action, other than enforcement action, of
security and supervision, taken in conformity with Article 14, with
a view to supervising the withdrawal of the troops and the re-
establishment of the armistice line. It is in this way that it has
been sought to justify the dispatch of the Emergency Force.

However, this distinction between enforcement action and armed
action which is not coercive but simply police or security action is
perhaps too subtle for the second of these to be assigned to the
General Assembly. For that, a specific addition to or an amend-
ment of the Charter, made by the competent organ of the United
Nations, would perhaps be required. After all, this has reference
to a military mobilization action on foreign territory, which is
always liable to cause complications, which has in fact occurred on
occasion. It is only the consideration of this exceptional circum-
stance of the Security Council’s paralysis in the particular case of
Egypt which makes the matter clearer and lessens the doubts
which I have referred to. In this connection, reference has been
made to the precedent of other similar interventions by the Gen-
eral Assembly, which are said to have constituted a reaffirmation
of the scope of the Assembly’s peace-keeping powers. Among these
interventions have been mentioned the establishment of a Special
Committee on the Balkans (October 1947), of the Commission for
the Unification of Korea (October 1950), and of the observation
group in the Lebanon (June 1958). It is for the Organization to
appraise the pertinence and the weight of these precedents.

In the case of the Congo, the military action was ordered by the
Security Council and not by the General Assembly. Hence no prob-
lem arises as to the validity of the resolutions initiating the action.
One may perhaps arise with regard to its continuance in new and
complex circumstances. The presence of ONUC in the Congo having
continued, financial resolutions by the General Assembly followed
one another indefinitely and gave rise to objections on the part of
certain States.

To sum up, it may be asserted that in the cases of the Middle
East and the Congo a definition by a competent authority of the
United Nations is indispensable of the nature of the action under»

1 Document A/3267, 3 November 1956, p. 3; Document A/3287, 4 November,
p. 11; Document A/3289, 4 November, p. 15; all these documents are included
in the volume of annexes of the first Emergency Special Session, 749th and 750th
meetings of the Security Council, dated 30 October 1936—Dossier of the United
Nations Secretariat, Document No. 132.

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taken by UNEF and ONUC (enforcement action or mere security
policing) ; and also of the scope of the obligations of States Members
in respect of this type of armed expedition—not provided for in the
Charter—which are not imposed by the Security Council under
Article 43 of the Charter, but which emanate from decisions of the
Security Council or from recommendations by it and by the General
Assembly with a view to carrying out, with the consent of the States
interested, a mere action of police control without enforcement
character.”

(c) The Charter—it is asserted—has been violated because the
Organization has intervened in the domestic affairs of the Republic
of the Congo in spite of the provision of Article 2, paragraphs r and
7. In fact, it is added, one of the purposes of the armed action autho-
rized by the Security Council (resolutions of 14 and 22 July and
8 August 1960, and 21 February and 24 November 1061) was to
supply the Government of the Congo with the military assistance
which it needed to restore internal law and order and, subsequently,
to stamp out the secessionist movement of Katanga province;
but these two objectives—it is said—come clearly within the exclu-
sive competence of the local government and the Congolese people.

The view taken by the Security Council establishes a close con-
nection between the maintenance of internal law and order and the
maintenance of international peace and security, in view of the
presence of Belgian troops and the influence of complex interests
within the country. It was added that since the Congo was a new
Republic, only recently having become a Member of the United
Nations, it should receive from the Organization all the assistance
which it has asked for to achieve its normal formation as a State
(Article 1, para. 3, of the Charter). Finally, it was said that the
political constitution of the new State was founded upon the prin-
ciple of the confederal unity of the various provinces, of which
Katanga was one; and that, not having yet completed either its
constitutional “process” or the organization of its national powers
with the participation of the representatives of all the provinces,
any kind of movement against the lot fondamentale was premature
and called for condemnation by the international community.

This broadened interpretation of the new tutelary functions of the
United Nations in respect of new States clearly contains a theory
which is a noble conception from the humanitarian and civic point
of view; but the scope of this theory must first be reconciled by the
Organization with the principle laid down by Article 2, paragraphs 1
and 7, and likewise with the financial possibilities of States Mem-
bers. That is the question which has to be solved.

As to the principle of non-intervention in matters within the
domestic jurisdiction, it is beyond dispute that the Organization
has not in fact committed any infringement in the case of the Congo,
since it was the Government of that State which, on its own initia-
tive, asked for the assistance of the United Nations. But the question

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is not so simple from the financing point of view. These new finan-
cial obligations of Member States were not contemplated in the
Charter. Hence it is doubtful whether a contractual obligation to
pay exists. It may be said that the policy of assisting the Congo to
settle its domestic affairs was adopted in the spirit of Articles 1
(paragraph 3) and 55 (paragraphs (6) and (c}) of the Charter; but
in the field of international co-operation, expenses are met by
means of voluntary contributions and are not compulsorily ap-
portioned among all States. In any case, some general interpretative
decision on the part of the Organization is lacking on this subject.

(ad) The States which raised objections to the expenditures in
question contend that there has been a violation of the Charter
because the execution of armed actions in the Middle East and the
Congo was not made the military and financial responsibility
of a State or group of States under “special agreements’’ signed
with them by the Security Council (Article 43), but that the actions
in question were taken in hand directly by the General Assembly,
and therefore placed under the responsibility of the Organization
and entrusted to a special United Nations Force, for which there is
no provision in the Charter.

To understand and evaluate this objection, two questions must be
considered: one of law and one of fact.

The legal question is whether the negotiation of ‘‘special agree-
ments” is, according to the spirit of the Charter, such a basic one
that, if such agreements are not concluded, the action ordered
should not be undertaken. I incline not to think so. In practice it
may occur that the State or group of States called upon to supply
armed assistance cannot do so at once or decline to accept the
responsibility. In the theory of the Charter—it should be noted—
there is no provision for such refusal but, in any case, that would be
sufficient to frustrate the decision of the United Nations to main-
tain or re-establish peace. In that event, the Security Council must
fill the gap by means of direct measures. The principle of “institu-
tional effectiveness” which the Court has applied on certain oc-
casions (Reports, Advisory Opinion of 11 April 1949) indicates that
the Organization may, in such circumstances, seek in the spirit of
the Charter the effective means of attaining its purposes (Article 1).
No other means would appear to be available to the Organization
but the formation of a special Force for the operations.

One more point remains to be cleared up: are the States called
upon to intervene, by means of the “special agreements’’ mentioned
in Article 43, only States which are Members of the Security Council
or only its permanent Members, or can they be any other Member
States of the Organization? Undoubtedly, the view favourable to
the first two hypotheses has been put forward and may find sup-
port in the fact that the Members of the Council are the responsible
parties before the whole world in decisions on peace and war; and

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also in the fact that the permanent Members represent the most
important centre of gravity within the international community
from the point of view of power and resources. But the text of
Articles 43 and 45, in agreement with Article 2, paragraph 2, and
Articles 17, 24 (paragraph 1) and 25 of the Charter, in my opinion,
make it possible to recognize an obligation on add States to answer,
if necessary, the call of the Security Council to participate in
“special agreements”. That is another question where a decision
by the United Nations is expected by the objecting States.

As to the question of fact, it seems to me that a mistake has
been made when it is stated, with regard to the Middle East and
Congo, that “special agreements” were not entered into. Several
States replied favourably to the Secretary-General’s request to
supply troops for the United Nations expedition in Egypt +; and
several of these countries did in fact send troops and, probably,
signed partial agreements stipulating the conditions of their assist-
ance. A similar situation arose in the.case of the Congo, when the
Secretary-General reached agreement with several African States
for the provision of troops. It cannot therefore be said that the rule
as regards “‘special agreements’’ has been violated. The distinguish-
ing feature is that the carrying out of the armed action was not
entrusted wholly to a single State or to a group of States as laid
down in Article 43, but rather it was the United Nations which
contributed as an organization a large share of the expenses and
which created an Emergency Force which was independent but
made up of the national contingents of several States and supplied
by them with arms, equipment, means of transport, etc., under
special agreements. Obviously, this type of United Nations force
is not mentioned in Article 43 and its origin must be sought in the
notion strongly upheld in the Assembly and the Secretariat that
the cases of the Middle East and the Congo were not cases coming
under Chapter VII of the Charter (threats to the peace, breaches
of the peace, and acts of aggression), but actions of security and
supervision freely accepted by the parties concerned, having no
enforcement character. As an element of these actions, the creation
of the Emergency Force was held—in the opinion of the Assembly
and the Secretariat—to come within the power of the General
Assembly to establish secondary organs (Articles 14 and 22). In
this view there would be no obligation—so it has been maintained—
to have regard only to the provision of Article 43 with regard to
“special agreements”.

The reservations which I have expressed on the scope of the
General Assembly’s power of action are equally relevant here. And I

1 Official Records, Annexes, 11th Session of the General Assembly, continuation
of agenda item 5 of the first emergency special session (1-10 November 1956),
New York, 1956-1957—No. 153 of the dossier transmitted to the Court by the
Secretariat of the United Nations.

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must also make reservations as to whether a military force may be
described as a “‘subsidiary organ” of the United Nations, since
institutional organs presuppose a certain discretionary capacity of
thought if they are to fulfil conscientiously the duty assigned to
them, and a military force lacks all deliberative powers and is
simply a disciplined executive instrument of orders from on high.
The Assembly would, no doubt, be able to create such an instrument
of action—endeavouring to overcome bureaucratic objections—if
the fundamental problem were first resolved in its favour, that is
to say if it were recognized that, leaving aside Article 43, there
were certain categories of military or para-military non-belligerent
actions which it could take up, independently of the Security Council
and outside the special agreements. No unwritten amendment of
the Charter on this subject has so far in my opinion been made
because, from the first moment, the idea was objected to by several
States Members, which rejected the innovation. This reluctance is
closely bound up with another objection of a financial character,
which I shall now consider.

(e) The objection considered in the foregoing paragraph concerns
the political aspect of the absence of ‘‘special agreements”’ and their
replacement by the Emergency Force of the United Nations in the
cases of the Middle East and the Congo. But the objection has a
wider bearing and concerns at the same time the financial aspect
of the actions undertaken for the maintenance of peace. In the
opinion of certain States, the expenditures on this type of armed
action should be borne exclusively by the State or group of States
called upon to carry out the action in accordance with ‘special
agreements” previously signed under Article 43; but not by all
States Members, as the practice of the General Assembly seeks to
establish. Certain States go further and take the view that, in
accordance with the spirit of the Charter, only Members of the
Security Council and particularly its permanent Members, should
be required to sign and to finance “‘special agreements” effecting
armed operations by the Organization, taking into consideration:

(a) the primary responsibility for the maintenance of peace
assigned by the Charter to Members of the Council;

(b) their decisive intervention in decisions concerning armed
action by the Organization (Articles 24, 25 and 39-43);

(c) the great share of authority which the Charter allots to per-
manent Members in the political direction of the Organiza-
tion (Article 27, para. 3).

Other, additional, criteria have been put forward, namely:

{d) the special responsibility of States which have a direct interest
in the pacification of the territory affected by the conflict;

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(e) the liability of the State or States which caused the distur-
bance of the peace.

That is why, during debates in the various organs of the United
Nations, there was much discussion of the question whether the
expenses incurred by the application of resolutions authorizing
armed actions are included or not in the “expenses of the Organiza-
tion” within the meaning of Article 17, paragraph 2. Several Member
States gave a negative reply to this question, and maintained that
expenditure on armed action is subject to special rules different
from the ordinary one laid down in paragraph 2 of that Article.
This view leads one to consider whether, in the intention of Arti-
cle 43, the ‘special agreements” presuppose that the financial
burden of each armed intervention will always fall completely and
exclusively on the State or group of States whose assistance has
been asked for; or whether this expenditure may be shared between
those individual States and the Organization as such; or borne by
the Organization alone. In the absence of any express rule—the
Charter itself is not explicit on the matter—I think that a conside-
ration of the general context of Article 43 bears in favour of the
second interpretation. It is in fact laid down in paragraph 2 of that
Article that the ‘‘agreements” shall govern not only the numbers
and types of forces, etc., but also “‘the nature of the ... assistance to
be provided’’—that is to say, in my view, whether this assistance
shall be free or paid for, or a mixture of both, and in what proportion.
And if this assistance is to be paid for wholly or partly by the Or-
ganization, the amount which the latter bears will in principle
constitute an ‘‘expense of the Organization” within the meaning
of Article 17, paragraph 2, of the Charter. The case has also to be
contemplated in which the State or States called upon to carry out
the armed action are not able to do so or to sign ‘special agree-
ments”, the Organization itself in that case undertaking the car-
rying out of the action. Furthermore, the text of Article 43, para-
graph 1, and that of Article 2, paragraph 4, and Articles 45 and 48
in principle places the responsibility for the maintenance of peace
and consequently the responsibility for the expenditure on all
Member States.

A particular and an important aspect of the objections raised to
the inclusion in Article 17, paragraph 2, of expenditure for the
maintenance of peace is the amount—every day a larger amount—
of that expenditure, in view of the great extension of the armed
interventions of the United Nations to preserve or restore peace.
This refers not only to the enforcement operations coming under
Article 43 of the Charter, but to any kind of armed action giving
rise to expenditure borne by the Organization; which is exactly the
case of the armed interventions described as not of an enforcement
but of a police character, such as those of the United Nations Forces
(UNEF and ONUC), a large proportion of the expenditure on
which has fallen upon the Organization.

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Certain Member States have, in this connection, maintained that
it is impossible for them in their national budgets to meet the
international obligations for the defence of peace, since the cost of
these goes beyond the economic capacities and the fiscal resources
of their countries. This argument carries particular weight with
regard to under-developed countries, whose primordial duty is to
care for the fundamental needs of their own population. It is
maintained that the continual increase in military operations of
this nature from the promulgation of the Charter up to the present
time constitutes a new factor which has created equally new
circumstances, and that these should be taken into consideration
from a legal point of view so as to safeguard equity and the interests
of the contracting parties. France has indeed maintained that to
seek to make the financial decisions of the Assembly prevail over
the will of the parliamentary authority of each State would amount
to admitting the existence in the United Nations of a supranational
power which would be in conflict with the Charter (Article 2, paras.
1 and 7). These assertions undoubtedly deserve very thorough
consideration. It is not merely a question of quantity, for this real
conflict of powers and obligations between two public law persons
must not be underestimated.

It is clear to me that, at the time of the signature of the Charter,
none of the States Members could have foreseen that the obligations
which they acknowledged in respect of the Organization could one
day conflict with their obligations under municipal law vis-à-vis
their national communities. Nobody foresaw that the increase in
expenditure of the United Nations could one day endanger the
solvency of national budgets. But since this state of affairs has
arisen subsequently to the coming into force of the Charter, it is
obvious that such a new factor calls for very special consideration
by the competent organ of the Organization. The apportionment of
assessments according to the system of budgetary scales has been
the subject of continual criticisms. Some more explicit and formal
compromise between the budgetary necessities of the United Nations
and the constitutional problem of the objecting States must
therefore be arrived at, so as to incorporate in the Charter settlement
some further rule covering the new situation. In the meantime,
the case not having been foreseen and not coming under any spe-
cific pre-established agreement, it is not clear by virtue of what
principle of law the obligation to meet this type of expenditure wlira
pacte could be invoked. To declare, in these circumstances, that these
types of expenditure are expenses of the Organization, before there
is any special regulation in the matter, would in my view be an
extremely serious step: it would amount to placing certain States
before the dilemma of failing in their duties to the Organization or
of acting to the detriment of their own domestic law.

The General Assembly has seen the full importance of this problem,
as also the difficulties which it involves, and it has—I believe—

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begun to face it. It has introduced into the preamble of its most
recent financial resolutions some of the new criteria which have
been suggested regarding the different degrees of responsibility
of certain States Members in meeting the expenditure incurred in
peace-keeping operations. But the adoption of a special method
taking such criteria into consideration has not yet come to a satis-
factory conclusion although indeed resolution 1619 (XV) of 21
April 1961 announced an intermediate solution, namely the estab-
lishment of a new scale of assessments for the extraordinary expen-
diture incurred in these” operations.

{j} The Secretary-General has been reproached with having vio-
lated the Charter, in connection with the Middle East and Congo
conflicts, by discharging functions and responsibilities which belong
to the Security Council or to the General Assembly. But, in this
respect, regard must be had not only to Articles 22 and 29 of the
Charter, which enable those organs to establish subsidiary execu-
tive organs, but also to Article 98, under which the Secretary-
General, over and above his own functions, shall perform such
other functions as are entrusted to him by ‘‘the General Assembly,
the Security Council, the Economic and Social Council and the
Trusteeship Council”. The General Assembly in its resolutions of
1956, and the Security Council in its resolutions of 1960 and 1961,
expressly charged the Secretary-General with the implementation
of their decisions regarding armed action in the two countries.
In the case of such mandates, the Secretary-General acted in the
name of and on behalf of the mandators. There is therefore no
usurpation of functions, unless it is shown that the Secretary-
General has gone beyond his rights in the exercise of his mandate.

5. From the foregoing examination it follows in principle—that
is to say, by a theoretical interpretation of the Charter and without
contemplating any specific case—that it may be affirmed that the
expenses incurred by armed actions legally undertaken for the
maintenance of peace are expenses of the Organization within the
meaning of Article 17, paragraph 2. But, according to the view of
certain Member States, it equally follows that in the Middle East
and Congo conflicts, special circumstances of fact arose, because
of which resolutions were adopted by the organs of the United
Nations involving infringements of the Charter. In these circum-
stances—they say—no reliance can be placed as against Member
States on obligations deriving from resolutions which are not lawful.

Here is the point where a definintion is required. And it is not
the Court which can help to find it, since the request for an advisory
opinion does not include the question of the legality or the validity
of the resolutions to which it refers. I shall therefore confine my-
self to certain observations regarding this deadlock, so as to ex-
plain my views as to the answer to be given to the request.

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The United Nations is an association of States in which the rights
and the obligations of the Members are contractually prescribed in
its constituent charter. It is the Charter which governs the mutual
relations of the associates and their relations with the Organiza-
tion itself. Only because of their acceptance of the purposes of the
Charter and the guarantees therein laid down have the States
Members partially limited the scope of their sovereign powers
(Article 2). It goes without saying, therefore, that the real reason
for the obedience of States Members to the authorities of the Organ-
ization is the conformity of the mandates of its competent organs
with the text of the Charter. This principle of the conditional link
between the duty to accept institutional decisions and the confor-
mity of those decisions with the Charter is enshrined in Article 25,
which, although referring explicitly to the Security Council, in
my opinion lays down a fundamental basic rule which is generally
applicable to the, whole system of the Charter. Article 2, paragraph 2,
confirms this interpretation.

There is therefore a legal presumption that each of the organs of
the Organization is careful in its actions to comply with the pre-
scriptions of the Charter; but when, in the opinion of one of the
Member States, a mistake of interpretation has been made or there
has even been an infringement of the Charter, there is a right to
challenge the resolution in which the error has been noted for the
purpose of determining whether or not it departed from the Charter.

It cannot be maintained that the resolutions of any organ of the
United Nations are not subject to review: that would amount to
declaring the pointlessness of the Charter or its absolute subordi-
nation to the judgment—always fallible—of the organs.

But the case of the United Nations is clearly a special one. Hav-
ing regard to the fact that it is the highest international institution
as being an association of sovereign States, its unfettered autonomy
is subject to no higher tribunal capable of reviewing its acts. It is
the institution itself which has the power to rectify or to con-
firm them. That is probably why no provision was made in the
Charter for any supervisory organ to determine legality or confor-
mity with the Charter, such as some tribunal to which it would
be possible to refer—in the manner of judicial proceedings—the
objection of a Member State to a decision of the Organization. But
that in no way excludes the Organization’s function of dealing with
complaints by its Members. And I think I find evidence that that
was the intention of the Charter in the text of its Article 96, which
makes provision for the advice of the International Court of Justice
on legal questions. An advisory opinion, taking the place of judicial
proceedings, is a method of voluntary recourse which, if only by
way of elucidation, precedes the decision which the Organization
is called upon to give with regard to legal objections raised by
Member States.

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In respect of the Middie East and the Congo, observations have
been made by certain States on various matters: some of them stat-
ing that certain resolutions of the General Assembly or the Security
Council are not in conformity with the Charter; others pointing
out possible mistakes of interpretation of the Charter which have
imposed on all Member States obligations for which there should not
be general responsibility; others, again,.asking that the Organiza-
tion should lay down rules on matters for which there is no provi-
sion in the Charter. The non-obligatory character of decisions which
result from a mere recommendation and not from an imperative
mandate by a principal organ has also been pointed out. This
attitude on the part of certain States derives from an inherent
right of all members of associations which have a body of rules to
which the acts of the institution have to conform. This principle of
conformity with the rules is, one must not forget, the basis for a
contractual obligation. The fact that, faced with this number of
objections, the General Assembly. has asked for the legal opinion of
the Court is—in my view—the best proof that this organ of the
United Nations intends to decide in accordance with law the objec-
tions put forward by several of its Members and—perhaps—to
embark upon a review or adaptation of the Charter to the new
circumstances. Meantime, it is not possible to determine whether,
with regard to the objecting States, the expenditures incurred in
the operations in Egypt and the Congo are lawful expenses and,
accordingly, expenses of the Organization.

It might be said that the resolutions objected to having been
adopted by the majority required by the Charter (Article 18, para. 2,
and Article 27, para. 3) are legally valid and indeed binding on all
Member States, although some of them voted against or did not
take part in the vote. This is, indeed, the general principle which
governs the agreements of any association with a view to guaran-
teeing institutional unity and efficacity. But that refers only to the
formal or external legality and not to the intrinsic validity of the
resolutions. Non-conformity with the Charter is a question of in-
trinsic legality which may be raised by States Members even though
the formal legality may be indisputable. An objection to the sub-
stantive legality relates to the very existence of an obligation, since
the very existence of a contractual bond is in issue.

Furthermore, the Organization must pronounce on the allegation
that resolutions which approve mere recommendations of the
Assembly or the Security Council do not have obligatory effect
for States which have not accepted them. This is a special feature
of the system of the United Nations as to which nothing is defined
in the Charter. What would be the difference between an imperative
resolution of the Security Council and another involving simply a
recommendation of the Assembly or of the Council itself? Does the
recommendation become binding on all, by virtue of the approval

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of the majority? The word recommendation implies suggestion,
advice, advisability, usefulness, but not an order or an imperative
mandate. Logically, suggestion or advice cannot normally be
transformed into an obligation. It is the question which has to be
determined.

Turning to another aspect of the matter, it has been said that the
General Assembly’s resolutions regarding the commitment of
resources for the operations in the Middle East and in the Congo or
the financing of operational expenditures (‘‘derived”’ resolutions)
are themselves independent and ought not to be considered as
depending on the basic resolutions which authorize military opera-
tions. Each organ of the United Nations—it is said—is the judge
of its own competence; and the financial resolutions of the Assembly
have, in themselves, a binding force which proceeds from the
authority and the judgment of this organ, independently of the
connection with the basic resolutions. A legal defect of any kind
which might affect these last resolutions would not, therefore,
communicate its defect to the financial resolutions of the Assembly.
I do not agree with this view. One cannot demolish by this type of
reasoning the substantial and objective connection of cause and
effect between the resolution authorizing armed action and a
resolution providing for funds to cover the expenditure involved.
The legitimacy of the Assembly’s competence to fulfil its duty of
financing the Organization’s expenses is one thing;- whether the
purpose of the expenses and the method of financing are or are not
in conformity with the Charter is a very different matter. An
examination of this latter question is in my opinion permissible
with regard to all types of resolution. Moreover, some of the objec-
tions raised cover, not only the basic resolutions but also in a direct
fashion those of a financial nature, with regard to the apportion-
ment of the burden of the expenses among all the States.

A complication with regard to the financial resolutions lies in
the fact that many of them lay down the obligation to pay, by way
of reimbursement, for certain expenses met out of credits supplied
by third parties. Both the honour and the good faith of the Organi-
zation require the discharge of this type of obligation, even if it
originated in defective or unlawful resolutions. I think that the
solution is to be found in the general system of the Charter itself.
If the resolutions were adopted according to the prescribed forms,
by the majority of Member States required by the Charter, there is
a provisional presumption of legality in favour of these decisions.
The isolated cases of allegations on the part of some State or States
against the validity or conformity with the Charter of such reso-
lutions should also be decided by the competent organ at the
appropriate time; but in the meantime the effects of the resolutions
towards third parties should remain intact. Two possible solutions
may be considered: either the performance of the obligations is
borne by the States which explicitly or implicitly accepted the re-

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solution in question; or the responsibility is ascribed to all State
Members—and, in the latter case, after the settlement of objections
put forward by any State, internal arrangements of compensation
may be made if the decision is in favour of the objecting State.
The first solution might principally be applied when it is a question
of resolutions: deriving from simple recommendations, and the
second solution when the obligation derives from an imperative
mandate by the competent organ.

6. What I have said above suffices, I think, to explain why I
cannot reply simply yes or no to the question put in the request for
an advisory opinion, since in my view a substantial element of
appraisement is lacking, namely the ascertainment of the confor-
mity or non-conformity with the Charter of certain resolutions
mentioned in the request, which have been the subject of legal
objections on the part of various Member States.

From my present statement it is possible to infer my own judg-
ment with regard to these objections, some of which in my opinion
are ill founded, while there are serious reasons in support of others.
In any case, I think it indispensable to seek a legal definition which
decides as to the legality of all these objections or which expressly
governs situations not provided for in the Charter or having arisen
after the promulgation of the Charter. We are faced with a situa-
tion of uncertainty which cannot be ignored. The financial crisis
which has occurred within the Organization is only the reflection of
another crisis the subject of which is the very substance of the
Charter. But the fact is that the Court has not to pronounce on
this subject, not only because of the character of this advisory
opinion (which is an opinion, not a judgment) but also because the
question put to us for an opinion is limited entirely to determining
whether the expenditures in the Middle East and in the Congo
constitute or do not constitute “expenses of the Organization”,
without reference to the aspect of the legality of those expenditures.

Thus, I repeat what I have said above: in principle, I am of
opinion that expenditures validly authorized by the competent
organ for the carrying out of an armed action with the purpose of
maintaining international peace and security constitute “expenses
of the Organization’’. But in the case of the expenditures authorized
for the operations in the Middle East and the Congo, it is for the
competent organ of the United Nations to pronounce on the legal
objections put forward by certain States against the relevant resolu-
tions. Only after this pronouncement on the legality or the non-
legality of these resolutions would, in my opinion, a reply to the
request be possible.

In consequence, I conclude that the expenditures referred to in
the request for an advisory opinion would constitute expenses of
the Organization if, after consideration of the legal objections

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raised by certain Member States, the competent organ of the United
Nations succeeds in determining as legal and valid the resolutions
by virtue of which the expenses in question were incurred.

Since this definition has not been given and having regard to the
limitations of the request, the Court—in my view—cannot declare
whether the expenditures in question are or are not expenses of the
Organization within the meaning of Article 17, paragraph 2, of the
Charter. But if the Court must in voting reply categorically “yes”
or ‘no’ to the question put in the request, my reply can only be
negative for, according to the foregoing, I am not in a position to
assume the responsibility for an affirmative characterization of the
legality of the expenditures.

(Signed) J. L. BUSTAMANTE.

I6I