* bok * cj * tiff * gem * tin * public international law UPLAW 2009 B

“Can you imagine having this unwanted guest all the time? Kawawa naman ang sex life ni ambassador! We have to go to the ICJ so we can run around naked!”III. Actors in International LawThis digest compilation wouldn’t have been possible without Carol, Eps, Cams, and PJ. ICJ Summaries, when available, also included.

Participants in the International Legal System(Higgins, Chapter 3)

1. The classic view has been that international law applies only to states. But, as we will see, there is a growing perception that it is relevant to international actors other than states. However, international law, for the time being, is still primarily of application to states. States are still at the heart of the international legal system.

STATES

2. International law stipulates the criteria by reference to which an entity is to be termed a state; it stipulates the rights and obligations of states; and it is the body of law which will most usually govern the relations of states with each other.

3. QUALIFICATIONS OF A STATE AS A PERSON OF INTERNATIONAL LAW (Montevideo Convention on the Rights and Duties of States)

a. permanent populationb. defined territoryc. governmentd. capacity to enter into relations with the other states

4. But it should not be thought that, because the formal definition of statehood has remained unchanged, the concept of statehood is rigid and immutable. Its component elements have always been interpreted and applied flexibly, depending on the circumstances and the context in which the claim of statehood is made.

5. EXAMPLES CITED BY HIGGINS IN WHICH THE QUALIFICATIONS OF STATEHOOD WERE NOT RIGIDLY APPLIED. “The position of India and the Philippines was anomalous at the time of admission to the UN”; Byelorussia and Ukraine were admitted as independent states even if it was not clear why they were treated as independent, and the other Soviet republics like them at the time were not; the territory requirement was not applied in the case of Israel which still has unresolved border disputes; Rwanda, Congo, and Burundi were admitted even if their new governments clearly had no effective control; so is the case with Cambodia, Lebanon, and Yemen whose governments were unstable and chaotic; Yugoslavia continues to be recognized as a UN member even though it already ceased to exist and was replaced by the states of Croatia, Slovenia, Bosnia-Herzegovina, and Serbia-Montenegro1; Andorra, San Marino, and Monaco did not seek UN membership despite being states because their foreign affairs power are in the hands of other states and because of their small size and resources; statehood as a basis for UN membership was even more liberally interpreted

1 Serbia-Montenegro was not even recognized as the legal successor to the former Yugoslavia; its membership was suspended in the UN and was asked to renew membership de novo.

Always will B

UN Charter:ART. 4: 1. Membership in the United Nations is open to all other peace-loving states which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations.2. The admission of any such state to membership in the United Nations will be effected by a decision of the General Assembly upon the recommendation of the Security Council.

ART. 32: Any Member of the United Nations which is not a member of the Security Council or any state which is not a Member of the United Nations, if it is a party to a dispute under consideration by the Security Council, shall be invited to participate, without vote, in the discussion relating to the dispute. The Security Council shall lay down such conditions as it deems just for the participation of a state which is not a Member of the United Nations.

ART. 35 (2): A state which is not a Member of the United Nations may bring to the attention of the Security Council or of the General Assembly any dispute to which it is a party if it accepts in advance, for the purposes of the dispute, the obligations of pacific settlement provided in the present Charter.

ART. 93(2): A state which is not a Member of the United Nations may become a party to the Statute of the International Court of Justice on conditions to be determined in each case by the General Assembly upon the recommendation of the Security Council.

ART 34, ICJ Statute:1. Only states may be parties in cases before the Court. 2. The Court, subject to and in conformity with its Rules, may request of public international organizations information relevant to cases before it, and shall receive such information presented by such organizations on their own initiative. 3. Wherever the construction of the constituent instrument of a public international organization or of an international convention adopted thereunder is in question in a case before the Court, the Registrar shall so notify the public international organization concerned and shall communicate to it copies of all the written proceedings.

ART. 1, Montevideo Convention on the Rights and Duties of States:The state as a person of international law should possess the following qualifications: a ) a permanent population; b ) a defined territory; c ) government; and d) capacity to enter into relations with the other states.

* bok * cj * tiff * gem * tin * 2when invoking the privilege not to become a UN member but only to appear before the Security Council or to become party to the ICJ Statute; countries were also admitted to UN Specialized Agencies like WHO, UPU, ICAO, UNESCO and ILO even if they would not have qualified for membership to the UN.

6. There is also a doctrinal dispute as to whether recognition of a state by a significant number of other states is a further requisite to the Montevideo qualifications. But no matter what position one takes, it is the case that no entity has had access to generalized areas – like to UN membership, or participation in multilateral conferences – without being recognized by a substantial number of existing states.

7. “Effective Control” as a requisite of government is also a debatable issue. When China fell to the hands of Mao and the communists, the US refused to recognize it because its position was allegedly acquired through the unlawful use of force. UK, however, recognized the Mao government because it has the effective control of Mainland China. Higgins argued that since the purpose of the UN is to promote the welfare of as many peoples as possible, the qualification of statehood should be more accommodative, regardless of the politics being espoused by the respective governments. She points out that 85 percent of UN governments are ruled by dictatorships of one sort or another.

8. In the 1960s the ides has come to take hold that people were entitled to a more direct participation in decisions over their own lives. Mere membership of their countries in the UN has been a totally insufficient guarantee of such participation. Instead, there has developed the concept of internal self-determination. There is a growing tendency of the UN to ensure not only the transformation of colonization to independence but also to ensure that newly independent countries are governed by representative governments. Two means are being employed in this regard: non-recognition of manifestly unrepresentative governments2 and technical assistance to ensure that power is transferred to the elected representatives of the people. The espousal of democracy and free choice as a concomitant of the recognition of the right to self-determination in International Human Rights Covenants is being carried out by recognizing only those governments that exercise effective control and posses a representative quality.

9. The pressure for self-determination, and the growing importance of representative government, led to another important phenomenon – a willingness to recognize the independence of entities which have shown commitment to representative government even where there is no government really yet in effective control.

10. THE CONSEQUENCES OF RECOGNITION. A recognizing state may use recognition as a useful tool for securing social ends. But beyond that, the requirements of international intercourse make it hard to avoid some public

2 Like Ian Smith’s “government” of Rhodesia which unilaterally declared “independence” from UK, and the non-recognition of the Bantustans’ purported independence from South Africa.

statement when a new state comes upon the scene. Further, states will have to vote for or against the admission of state-applicants to the United Nations, or its specialized agencies. It may well be necessary to take a position on certain legal issues; and indeed, the voting may give rise to implied recognition. For the recognized states, on the other hand, recognition serves certain domestic purposes – being able to sue in the courts of the forum; private persons being able to claim title through decrees or legislative acts of an unrecognized government; claiming those privileges and immunities from jurisdiction afforded by international law

11. How does recognition come about? In the US, recognition is an executive prerogative. In the UK, the Foreign and Commonwealth Office provides a certificate on the recognition of a state, or a letter in reply to a court’s request for information – but the legal consequences are left for the court to draw.

INTERNATIONAL ORGANIZATIONS

12. International organizations may be participants in the international legal systems in a variety of senses. They will often be established by international treaty and their governing law. They may be endowed by their constituent instruments with international personality – they are legal persons distinct from the states who established them and agreed to their constituent instruments.

13. in the words of Fischer Williams, the entity is the bearer of rights and obligations. The classic indicia are (1) ability to contract (2) ability to sue and be sued (3) ability to own property (4) a volonte distincte or a capacity to take decisions which bind the membership, perhaps even when not all of the members have favoured in the decision concerned.

14. Sometimes a treaty establishing an international organization will state in terms whether it has international legal personality. On other occasions it may be necessary to deduce personality from powers that are given in the constituent treaty and from functions that the organization has been given.

15. in the Advisory Opinion in Reparation for Injuries, the ICJ was asked whether the UN could bring a legal suit to recover damages for the death of its employee, Count Folke Bernadotte. It could only do so if it had legal personality, on which the UN Charter was silent. The ICJ Said: the organization was intended to exercise and enjoy, and is in fact exercising and enjoying functions and rights which can only be explained on the basis of the possession of a large measure of international personality and the capacity to operate in the international plane…it could not carry out the intentions of its founders if it was devoid of legal personality.

16. If an organization does not have personality, its members states will be liable for its defaults and wrongful acts. But the converse is not necessarily true. The fact that and organization has a legal personality means that it is liable for its own defaults. But whether the member states have a concurrent or a secondary liability depends upon the particular constituent instrument. In Higgins’s view, in

Always will B

* bok * cj * tiff * gem * tin * 3the absence of any such provisions, there is no liability upon member states and nor is there any provision of general international law that makes states liable.

17. The fact that an organization has or has been recognized is immaterial. If the attributes giving international personality to an organization are there, personality exists. It is not a matter of recognition. It is a mettr of objective reality.

18. If an entity having legal personality internationally can also have personality in domestic law is a matter that lies in the laws of the various jurisdictions. Some domestic courts will take the provisions of the international instrument as a guide to what status the local forum should accord the organization. Others would require the sourse of the personality to be accorded the organization to be found in domestic law. This is especially likely to be the case if the jurisdiction concerned does not automatically receive treaties as part of domestic law, but requires them to be incorporated into domestic law before local effect will be given to them.

INDIVIDUALS

19. We have all been held captive by a doctrine that stipulates that all international law is to be divided into subjects (those elements bearing, without the need for municipal intervention, rights and responsibilities) and objects (the rest).

20. Higgins believes that such argument is wrong. It is not particularly helpful to rely on the subject-object dichotomy that runs through so much of the writings. It is more helpful to return to the view of international law as a particular decision-making process. Within that process there are a variety of participants, making claims across state lines, with the object of maximizing various values. Determinations will be made on those claims by various authoritative decision-makers. (Foreign Office legal advisers, arbitral tribunals, courts). In this model, there are no subjects and objects but only participants. Individuals are participants along with states, intl orgs, multinational corporations, and private non-governmental groups.

21. Higgins in another article writes: “Individuals’ interest lies in other directions: in protection from the physical excesses of others, in their personal treatment abroad, in the protection abroad of their property interests, in fairness and predictability in their international transactions and in securing some external support for the establishment of a tolerable balance between their rights and duties within their national state. Thus, the topics of minimum standard of treatment of aliens, requirements as to the conduct of hostilities and human rights, are not simply exceptions conceded by historical chance within a system of rules that operate between states. Rather, they are simply part of the fabric of intl law, representing the claims that are naturally made by individual participants in contradistinction to state-participants. “

22. Individuals have little access to intl arenas; and are dependent on nationality of claims rule, whereby an individual must, generally speaking, pursue a claim at the international level by getting his government to take it up on his behalf. Articles

36 an 65 of the ICJ Statute allow only states and international organs to obtain, respectively, judgments and advisory opinions.

23. Blocking Statutes require the reporting to the national authorities of assertions of jurisdiction deemed excessive and damaging to the national interest. But generally speaking, no specific harm is done to the state itself through injury to the individual. Its natural general interest in seeing that its citizens should be unmolested and properly treated could be met by the individual being allowed to bring an international claim himself.

24. This right to bring action conferred on the individual is correct as a matter of analysis. Often, his national govt is not interested in pursuing the claim on his behalf because of broader considerations that it concerns itself with. Further, intl law does not oblige the state to protect him, and his national law will almost certainly not allow any judicial review of a govt’s failure to act on his behalf.

25. Lauterpacht argues that: “ The position of the individual as a subject of intl law has often been obscured by the failure to observe the distinction between the recognition, in an international instrument of human rights enuring to the benefit of the individual and the enforceability of these rights at his instance. The fact that the beneficiary of the rights is not authorized to take independent steps in his own name to enforce them does not signify that he is not a subject of of the law or that the rights in question are vested exclusively in the agency which possesses the capacity to enforce them. Thus in relation to the current view that the rights of the alien within foreign territory are not that the state asserts its own exclusive right but that it enforces, ins ubstance, the rights of the individual who, as the law now stands, is incapable of asserting it in the intl sphere”.

26. Higgins, commenting on Lauterpacht’s focus on an intl instrument, argues that the individual does have righst owed to him under intl law. The principle is equally applicable without the intervention of an intl instrument, and individuals can be the beneficiaries of intl law rights which fall upon states to perform as a matter of general intl law.

CASE CONCERNING THE BARCELONA TRACTION, LIGHT AND POWER COMPANY, LIMITED (5 Feb. 1970); ICJ Summary

In its judgment in the second phase of the case concerning the Barcelona Traction, Light and Power Company, Limited (New Application: 1962) (Belgium v. Spain), the Court rejected Belgium's claim by fifteen votes to one.

The claim, which was brought before the Court on 19 June 1962, arose out of the adjudication in bankruptcy in Spain of Barcelona Traction, a company incorporated in Canada. Its object was to seek reparation for damage alleged by Belgium to have been sustained by Belgian nationals, shareholders in the company, as a result of acts said to be contrary to international law committed towards the company by organs of the Spanish State.

Always will B

* bok * cj * tiff * gem * tin * 4The Court found that Belgium lacked jus standi to exercise diplomatic protection of shareholders in a Canadian company with respect to measures taken against that company in Spain.

Judges Petrén and Onyeama appended a joint declaration to the Judgment; Judge Lachs appended a declaration. President Bustamante y Rivero and Judges Sir Gerald Fitzmaurice, Tanka, Jessup, Morelli, Padilla Nervo, Gros and Ammoun appended Separate Opinions.Judge ad hoc Riphagen appended a Dissenting Opinion.

Background of Events in the Case(paras. 8-24 of the Judgment)

The Barcelona Traction, Light and Power Company, Limited, was incorporated in 1911 in Toronto (Canada), where it has its head office. For the purpose of creating and developing an electric power production and distribution system in Catalonia (Spain) it formed a number of subsidiary companies, of which some had their registered offices in Canada and the others in Spain. In 1936 the subsidiary companies supplied the major part of Catalonia's electricity requirements. According to the Belgian Government, some years after the first world war Barcelona Traction share capital came to be very largely held by Belgian nationals, but the Spanish Government contends that the Belgian nationality of the shareholders is not proven.

Barcelona Traction issued several series of bonds, principally in sterling. The sterling bonds were serviced out of transfers to Barcelona Traction effected by the subsidiary companies operating in Spain. In 1936 the servicing of the Barcelona Traction bonds was suspended on account of the Spanish civil war. After that war the Spanish exchange control authorities refused to authorize the transfer of the foreign currency necessary for the resumption of the servicing of the sterling bonds. Subsequently, when the Belgian Government complained of this, the Spanish Government stated that the transfers could not be authorized unless it were shown that the foreign currency was to be used to repay debts arising from the genuine importation of foreign capital into Spain and that this had not been established.

In 1948 three Spanish holders of recently acquired Barcelona Traction sterling bonds petitioned the court of Reus (Province of Tarragona) for a declaration adjudging the company bankrupt, on account of failure to pay the interest on the bonds. On 12 February 1948 a judgment was given declaring the company bankrupt and ordering the seizure of the assets of Barcelona Traction and of two of its subsidiary companies. Pursuant to this judgment the principal management personnel of the two companies were dismissed and Spanish directors appointed. Shortly afterwards, these measures were extended to the other subsidiary companies. New shares of the subsidiary companies were created, which were sold by public auction in 1952 to a newly-formed company, Fuerzas Electricas de Cataluna, S.A. (Fecsa), which thereupon acquired complete control of the undertaking in Spain.

Proceedings were brought without success in the Spanish courts by various companies or persons. According to the Spanish Government, 2,736 orders were made in the case and 494 judgments given by lower and 37 by higher courts before it was submitted to the International Court of Justice. The Court found that in 1948 Barcelona Traction, which had not received a judicial notice of the bankruptcy proceedings, and was not represented before the Reus court, took no proceedings in the Spanish courts until 18 June and thus did not enter a plea of opposition against the bankruptcy judgment within the time-limit of eight days from the date of publication of the judgment laid down in Spanish legislation. The Belgian Government contends, however, that the notification and publication did not comply with the relevant legal requirements and that the eight-day time-limit never began to run.

Representations were made to the Spanish Government by the British, Canadian, United States and Belgian Governments as from 1948 or 1949. The interposition of the Canadian Government ceased entirely in 1955.

Proceedings before the International Court and the Nature of the Claim(paras. 1-7 and 26-31 of the Judgment)

The Belgian Government filed a first Application with the Court against the Spanish Government in 1958. In 1961 it gave notice of discontinuance of the proceedings, with a view to negotiations between the representatives of the private interests concerned, and the case was removed from the Court's General List. The negotiations having failed, the Belgian Government on 19 June 1962 submitted to the Court a new Application. In 1963 the Spanish Government raised four preliminary objections to this Application. By its Judgment of 24 July 1964, the Court rejected the first and second objections and joined the third and fourth to the merits.

In the subsequent written and oral proceedings the Parties supplied abundant material and information. The Court observed that the unusual length of the proceedings was due to the very long time-limits requested by the Parties for the preparation of their written pleadings and to their repeated requests for an extension of chose limits. The Court did not find that it should refuse those requests, but it remained convinced that it was in the interest of the authority of international justice for cases to be decided without unwarranted delay.

The claim submitted to the Court had been presented on behalf of natural and juristic persons, alleged to be Belgian nationals and shareholders in Barcelona Traction, a company incorporated in Canada and having its head office there. The object of the Application was reparation for damage allegedly caused to those persons by the conduct, said to be contrary to international law, of various organs of the Spanish State towards that company.

The third preliminary objection of the Spanish Government, which had been joined to the merits, was to the effect that the Belgian Government lacked capacity to submit any claim in respect of wrongs done to a Canadian company even if the shareholders were Belgian. The fourth preliminary objection, which was also joined to the merits, was to the effect that local remedies available in Spain had not been exhausted.

The case submitted to the Court principally concerned three States, Belgium, Spain and Canada, and it was accordingly necessary to deal with a series of problems arising out of this triangular relationship.

The Belgian Government's jus standi(paras. 32-101 of the Judgment)

The Court first addressed itself to the question, raised by the third preliminary objection, which had been joined to the merits, of the right of Belgium to exercise diplomatic protection of Belgian shareholders in a company incorporated in Canada, the measures complained of having been taken in relation not to any Belgian national but to the company itself.

The Court observed that when a State admitted into its territory foreign investments or foreign nationals it was bound to extend to them the protection of the law and assumed obligations concerning the treatment to be afforded them. But such obligations were not absolute. In order to bring a claim in respect of the breach of such an obligation, a State must first establish its right to do so.

In the field of diplomatic protection, international law was in continuous evolution and was called upon to recognize institutions of municipal law. In municipal law, the concept of the

Always will B

* bok * cj * tiff * gem * tin * 5company was founded on a firm distinction between the rights of the company and those of the shareholder. Only the company, which was endowed with legal personality, could take action in respect of matters that were of a corporate character. A wrong done to the company frequently caused prejudice to its shareholders, but this did not imply that both were entitled to claim compensation. Whenever a shareholder's interests were harmed by an act done to the company, it was to the latter that he had to look to institute appropriate action. An act infringing only the company's rights did not involve responsibility towards the shareholders, even if their interests were affected. In order for the situation to be different, the act complained of must be aimed at the direct rights of the shareholder as such (which was not the case here since the Belgian Government had itself admitted that it had not based its claim on an infringement of the direct rights of the shareholders).

International law had to refer to those rules generally accepted by municipal legal systems. An injury to the shareholder's interests resulting from an injury to the rights of the company was insufficient to found a claim. Where it was a question of an unlawful act committed against a company representing foreign capital, the general rule of international law authorized the national State of the company alone to exercise diplomatic protection for the purpose of seeking redress. No rule of international law expressly conferred such a right on the shareholder's national State.

The Court considered whether there might not be, in the present case, special circumstances for which the general rule might not take effect. Two situations needed to be studied: (a) the case of the company having ceased to exist, and (b) the case of the protecting State of the company lacking capacity to take action. As regards the first of these possibilities, the Court observed that whilst Barcelona Traction had lost all its assets in Spain and been placed in receivership in Canada, it could not be contended that the corporate entity of the company had ceased to exist or that it had lost its capacity to take corporate action. So far as the second possibility was concerned, it was not disputed that the company had been incorporated in Canada and had its registered office in that country, and its Canadian nationality had received general recognition. The Canadian Government had exercised the protection of Barcelona Traction for a number of years. If at a certain point the Canadian Government ceased to act on behalf of Barcelona Traction, it nonetheless retained its capacity to do so, which the Spanish Government had not questioned. Whatever the reasons for the Canadian Government's change of attitude, that fact could not constitute a justification for the exercise of diplomatic protection by another government.

It had been maintained that a State could make a claim when investments by its nationals abroad, such investments being part of a State's national economic resources, were prejudicially affected in violation of the right of the State itself to have its nationals enjoy a certain treatment. But, in the present state of affairs, such a right could only result from a treaty or special agreement. And no instrument of such a kind was in force between Belgium and Spain.

It had also been maintained that, for reasons of equity, a State should be able, in certain cases, to take up the protection of its nationals, shareholders in a company which had been the victim of a violation of international law. The Court considered that the adoption of the theory of diplomatic protection of shareholders as such would open the door to competing claims on the part of different States, which could create an atmosphere of insecurity in international economic relations. In the particular circumstances of the present case, where the company's national State was able to act, the Court was not of the opinion that jus standi was conferred on the Belgian Government by considerations of equity.

The Court's Decision(paras. 102 and 103 of the Judgment)

The Court took cognizance of the great amount of documentary and other evidence submitted by the Parties and fully appreciated the importance of the legal problems raised by the allegation which was at the root of the Belgian claim and which concerned denials of justice allegedly committed by organs of the Spanish State. However, the possession by the Belgian Government of a right of protection was a prerequisite for the examination of such problems. Since no jus standi before the Court had been established, it was not for the Court to pronounce upon any other aspect of the case.

Accordingly, the Court rejected the Belgian Government's claim by 15 votes to 1, 12 votes of the majority being based on the reasons set out above.

DECLARATIONS AND SEPARATE AND DISSENTING OPINIONSJudge ad hoc Riphagen appended to the Judgment a Dissenting Opinion in which he stated that he was unable to concur in the Judgment as the legal reasoning followed by the Court appeared to him to fail to appreciate the nature of the rules of customary public international law applicable in the present case.

Among the fifteen members of the majority, three supported the operative provisions of the Judgment (rejecting the Belgian Government's claim) for different reasons, and appended Separate Opinions to the Judgment. Judge Tanka stated that the two preliminary objections joined to the merits ought to have been dismissed, but that the Belgian Government's allegation concerning denials of justice was unfounded. Judge Jessup came to the conclusion that a State, under certain circumstances, had a right to present a diplomatic claim on behalf of shareholders who were its nationals but that Belgium had not succeeded in proving the Belgian nationality, between the critical dates, of those natural and juristic persons on whose behalf it had sought to claim. Judge Gros held that it was the State whose national economy was adversely affected that possessed the right to take action but that proof of Barcelona Traction appurtenance to the Belgian economy had not been produced.

Among the twelve members of the majority who supported the operative provision of the Judgment on the basis of the reasoning set out in the Judgment (lack of jus standi on the part of the shareholders' national State), President Bustamante y Rivero and Judges Sir Gerald Fitzmaurice, Morelli, Padilla Nervo and Ammoun (Separate Opinions) and Judges Padrone and Onyeama (joint declaration) and Judge Lachs (declaration) stated that nevertheless there were certain differences between their reasoning and that contained in the Judgment, or that there were certain observations which they wished to add.

(Judge Sir Muhammad Zafrulla Khan had informed the President at the beginning of the Preliminary Objections stage that, having been consulted by one of the Parties concerning the case before his election as a Member of the Court, he considered that he ought not to participate in its decision.)

REPARATION FOR INJURIES SUFFERED IN THE SERVICEOF THE UNITED NATIONS; ICJ Summary

The question concerning reparation for injuries suffered in the service of the United Nations, was referred to the Court by the General Assembly of the United Nations (Resolution of the General Assembly dated December 3rd, 1948) in the following terms:

"I. In the event of an agent of the United Nations in the performance of his duties suffering injury in circumstances involving the responsibility of a State, has the United Nations, as an Organization, the capacity to bring an international claim against the responsible de jure or

Always will B

* bok * cj * tiff * gem * tin * 6de facto government with a view to obtaining the reparation due in respect of the damage caused (a) to the United Nations, (b) to the victim or to persons entitled through him?"II. In the event of an affirmative reply on point I (b), how is action by the United Nations to be reconciled with such rights as may be possessed by the State of which the victim is a national?"

With respect to questions I (a) and I (b), the Court established a distinction according to whether the responsible State is a Member or not of the United Nations. The Court unanimously answered question I (a) in the affirmative. On question I (b) the Court was of opinion by 11 votes against 4 that the Organization has the capacity to bring an international claim whether or not the responsible State is a Member of the United Nations.

Finally, on point II, the Court was of opinion by 10 votes against 5 that when the United Nations as an organization is bringing a claim for reparation for damage caused to its agent, it can only do so by basing its claim upon a breach of obligations due to itself; respect for this rule will usually prevent a conflict between the action of the United Nations and such rights as the agent's national State may possess; moreover, this reconciliation must depend upon considerations applicable to each particular case, and upon agreements to be made between the Organization and individual States.

The dissenting Judges appended to the Opinion either a declaration or a statement of the reasons for which they cannot concur in the Opinion of the Court. Two other Members of the Court, while concurring in the Opinion, appended an additional statement.* * *In its Advisory Opinion, the Court begins by reciting the circumstances of the procedure.

The Request for Opinion was communicated to all States entitled to appear before the Court; they were further informed that the Court was prepared to receive information from them. Thus, written statements were sent by the following States: India, China, United States of America, United Kingdom of Great Britain and Northern Ireland and France. In addition, oral statements were presented before the Court by a representative of the Secretary-General of the United Nations, assisted by counsel, and by the representatives of the Belgian, French and United Kingdom Governments.

Then the Court makes a number of preliminary observations on the question submitted to it. It proceeds to define certain terms in the Request for Opinion, then it analyses the contents of the formula: "capacity to bring an international claim". This capacity certainly belongs to a State. Does it also belong to the Organization? This is tantamount to asking whether the Organization has international personality. In answering this question which is not settled by the actual terms of the Charter, the Court goes on to consider what characteristics the Charter was intended to give to the Organization. In this connection, the Court states that the Charter conferred upon the Organization rights and obligations which are different from those of its Members. The Court stresses, further, the important political tasks of the Organization: the maintenance of international peace and security. Accordingly the Court concludes that the Organization possessing as it does rights and obligations, has at the same time a large measure of international personality and the capacity to operate upon an international plane, although it is certainly not a super-State.

The Court then examines the very heart of the subject, namely, whether the sum of the international rights of the Organization comprises the right to bring an international claim to obtain reparation from a State in respect of the damage caused by the injury of an agent of the Organization in the course of the performance of his duties.

On the first point, I (a), of the Request for Opinion the Court unanimously reaches the conclusion that the Organization has the capacity to bring an international claim against a

State (whether a Member or non-member) for damage resulting from a breach by that State of its obligations towards the Organization. The Court points out that it is not called upon to determine the precise extent of the reparation which the Organization would be entitled to recover; the measure of the reparation should depend upon a number of factors which the Court gives as examples.

Then the Court proceeds to examine question I (b), namely, whether the United Nations, as an Organisation, has the capacity to bring an international claim with a view to obtaining the reparation due in respect of the damage caused, not to the Organization itself, but to the victim or to persons entitled through him.

In dealing with this point the Court analyses the question of diplomatic protection of nationals. The Court points out in this connection that really only the Organization has the capacity to present a claim in the circumstances referred to, inasmuch as at the basis of any international claim there must be a breach by the defendant State of an obligation towards the Organization. In the present case the State of which the victim is a national could not complain of a breach of an obligation towards itself. Here the obligation is assumed in favour of the Organization. However, the Court admits that the analogy of the traditional rule of diplomatic protection of nationals abroad does not in itself justify an affirmative reply. In fact, there exists no link of nationality between the Organization and its agents. This is a new situation and it must be analysed. Do the provisions of the Charter relating to the functions of the Organization imply that the latter is empowered to assure its agents limited protection? These powers, which are essential to the performance of the functions of the Organisation, must be regarded as a necessary implication arising from the Charter. In discharging its functions, the Organization may find it necessary to entrust its agents with important missions to be performed in disturbed parts of the world. These agents must be ensured of effective protection. It is only in this way that the agent will be able to carry out his duties satisfactorily. The Court therefore reaches the conclusion that the Organization has the capacity to exercise functional protection in respect of its agents. The situation is comparatively simple in the case of Member States, for these have assumed various obligations towards the Organization.

But what is the situation when a claim is brought against a State which is not a Member of the Organization? The Court is of opinion that the Members of the United Nations created an entity possessing objective international personality and not merely personality recognized by them alone. As in the case of Question I (a), the Court therefore answers Question I (b) in the affirmative.***Question No. II of the General Assembly refers to the reconciliation of action by the United Nations with such rights as may be possessed by the State of which the victim is a national. In other words, what is involved is possible competition between the rights of diplomatic protection on the one hand and functional protection on the other. The Court does not state here which of these two categories of protection should have priority and in the case of Member States it stresses their duty to render every assistance provided by Article 2 of the Charter. It adds that the risk of competition between the Organization and the national State can be reduced or eliminated either by a general convention or by agreements entered into in each particular case, and it refers further to cases that have already arisen in which a practical solution has already been found.

Finally, the Court examines the case in which the agent bears the nationality of the defendant State. Since the claim brought by the Organization is not based upon the nationality of the victim but rather upon his status as an agent of the Organization, it does not matter whether or not the State to which the claim is addressed regards him as its own national. The legal situation is not modified thereby.

Always will B

* bok * cj * tiff * gem * tin * 7

REPARATION FOR INJURIES SUFFERED IN THE SERVICE OF THE UNITED NATIONS ICJ Advisory Opinion (April 11, 1949)

GA’S RESOLUTION. On December 3rd, 1948, the General Assembly of the United Nations adopted the following Resolution: 'Whereas the series of tragic events which have lately befallen agents of the United Nations engaged in the performance of their duties raises, with greater urgency than ever, the question of the arrangements to be made by the United Nations with a view to ensuring to its agents the fullest measure of protection in the future and ensuring that reparation be made for the injuries suffered; and Whereas it is highly desirable that the Secretary-General should be able to act without question as efficaciously as possible with a view to obtaining any reparation due; therefore The General Assembly Decides to submit the following legal questions to the International Court of Justice for an advisory opinion: 'I. In the event of an agent of the United Nations in the performance of his duties suffering injury in circumstances involving the responsibility of a State, has the United Nations, as an Organization, the capacity to bring an international claim against the responsible de jure or de facto government with a view to obtaining the reparation due in respect of the damage caused (a) to the United Nations, (b) to the victim or to persons entitled through him? II. In the event of an affirmative reply on point I (b), how is action by the United Nations to be reconciled with such rights as may be possessed by the State of which the victim is a national?' RESOLUTION FORWARDED TO ICJ. The Sec-Gen of the UN forwarded to the Court a copy of the Resolution. The Registrar gave notice of the Request to all States entitled to appear before the Court. Written statements were received from the following States: India, China, United States of America, United Kingdom of Great Britain and Northern Ireland, and France. In the course of public sittings, the Court heard the oral statements presented on behalf of the following: Sec-Gen of the UN, Belgium, France, United Kingdom of Great Britain and Northern Ireland. PRELIMINARY OBSERVATIONS. It will be useful to make the following preliminary observations: (a) The Organization of the United Nations will be referred to usually, but not invariably, as 'the Organization'. (for the purposes of this digest, “UN”) (b) Questions I (a) and I (b) refer to 'an international claim against the responsible

de jure or de facto government'. The Court understands that these questions are directed to claims against a State, and will, therefore, in this opinion, use the expression 'State' or 'defendant State'. (c) The Court understands the word 'agent' in the most liberal sense, that is to say, any person who, whether a paid official or not, and whether permanently employed or not, has been charged by an organ of the Organization with carrying out, or helping to carry out, one of its functions-in short, any person through whom it acts. (d) As this question assumes an injury suffered in such circumstances as to involve a State's responsibility, it must be supposed, for the purpose of this Opinion, that the damage results from a failure by the State to perform obligations of which the purpose is to protect the agents of the Organization in the performance of their duties. (e) The position of a defendant State which is not a member of the Organization is dealt with later, and for the present the Court will assume that the defendant State is a Member of the Organization. DEFINITION OF CAPACITY. Competence to bring an international claim is, for those possessing it, the capacity to resort to the customary methods recognized by international law for the establishment, the presentation and the settlement of claims. (i.e. protest, request for an enquiry, negotiation, and request for submission to an arbitral tribunal or to the Court in so far as this may be authorized by the Statute). STATES CERTAINLY HAVE CAPACITY. A State can bring an international claim against another State. Such a claim takes the form of a claim between two political entities, equal in law, similar in form, and both the direct subjects of international law. It is dealt with by means of negotiation, and cannot, in the present state of the law as to international jurisdiction, be submitted to a tribunal, except with the consent of the States concerned.

BUT DOES THE ORGANIZATION HAS CAPACITY TO BRING AN INTERNATIONAL CLAIM? To answer the question, the Court must first enquire whether the Charter has given the UN such a position that it possesses, in regard to its Members, rights which it is entitled to ask them to respect. In other words, does the UN possess international personality?

DEVELOPMENTS IN INTERNATIONAL LIFE DEMANDED THE ESTABLISHMENT OF THE UN. The subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends upon the needs of the community. Throughout its history, the development of international law has been influenced by the requirements of international life, and the progressive increase in the collective activities of States has already given rise to instances of action upon the international plane by certain entities which are not States. This development culminated in the establishment in June 1945 of an international organization whose purposes and

Always will B

* bok * cj * tiff * gem * tin * 8principles are specified in the Charter of the United Nations. But to achieve these ends the attribution of international personality is indispensable. UN POSSESSES INTERNATIONAL PERSONALITY AS A NECESSARY IMPLICATION FROM THE CHARTER AND PRACTICE OF THE UNITED NATIONS . The Charter has not been content to make the UN created by it merely a centre 'for harmonizing the actions of nations in the attainment of these common ends' (Art. I, par. 4). It has equipped that centre with organs, and has given it special tasks. It has defined the position of the Members in relation to the UN by requiring them to give it every assistance in any action undertaken by it (Art. 2, par. 5), and to accept and carry out the decisions of the Security Council; by authorizing the General Assembly to make recommendations to the Members; by giving the UN legal capacity and privileges and immunities in the territory of each of its Members; and by providing for the conclusion of agreements between the UN and its Members. Practice-in particular the conclusion of conventions to which the UN is a party-has confirmed this character of the UN, which occupies a position in certain respects in detachment from its Members, and which is under a duty to remind them, if need be, of certain obligations. It must be added that the UN is a political body, charged with political tasks of an important character, and covering a wide field namely, the maintenance of international peace and security, the development of friendly relations among nations, and the achievement of international co-operation in the solution of problems of an economic, social, cultural or humanitarian character (Art. 1); and in dealing with its Members it employs political means. The 'Convention on the Privileges and Immunities of the United Nations' of 1946 creates rights and duties between each of the signatories and the Organization (see sec. 35). It is difficult to see how such a convention could operate except upon the international plane and as between parties possessing international personality. In the opinion of the Court, the UN was intended to exercise and enjoy, and is in fact exercising and enjoying, functions and rights which can only be explained on the basis of the possession of a large measure of international personality and the capacity to operate upon an international plane. It is at present the supreme type of international organization, and it could not carry out the intentions of its founders if it was devoid of international personality. It must be acknowledged that its Members, by entrusting certain functions to it, with the attendant duties and responsibilities, have clothed it with the competence required to enable those functions to be effectively discharged. Accordingly, ICJ has come to the conclusion that the UN is an international person.

THOUGH SUBJECT TO INTERNATIONAL LAW, UN IS NOT A STATE. Its legal personality and rights and duties are not the same as those of a State. It is not even a “super-State'. What it does mean is that it is a subject of international law and capable of possessing international rights and duties, and that it has capacity to maintain its rights by bringing international claims. THE MEMBERS HAVE ENDOWED UN WITH CAPACITY TO BRING INTERNATIONAL CLAIMS WHEN NECESSITATED BY THE DISCHARGE OF ITS FUNCTIONS. The next question is whether the sum of the international rights of the UN comprises the right to bring the kind of international claim (i.e. a claim

against a State to obtain reparation in respect of the damage caused by the injury of an agent of the UN in the course of the performance of his duties) described in the request. Whereas a State possesses the totality of international rights and duties recognized by international law, the rights and duties of an entity such as the UN must depend upon its purposes and functions as specified or implied in its constituent documents and developed in practice. The functions of the UN are of such a character that they could not be effectively discharged if they involved the concurrent action, on the international plane, of 58 or more Foreign Offices, and the Court concludes that the Members have endowed the UN with capacity to bring international claims when necessitated by the discharge of its functions. QUESTION I HAS TWO COMPONENTS. Question I is divided into two points (a) and (b), which must be considered in turn. (see GA’s resolution) RE QUESTION I (A): IT CANNOT BE DOUBTED THAT THE UN HAS THE CAPACITY TO BRING AN INTERNATIONAL CLAIM AGAINST ONE OF ITS MEMBERS WHICH HAS CAUSED INJURY TO IT BY A BREACH OF ITS INTERNATIONAL OBLIGATIONS TOWARDS IT. The question I (a) is concerned solely with the reparation of damage caused to the UN when one of its agents suffers injury at the same time. The damage specified in Question I (a) means exclusively damage caused to the interests of the UN itself, to its administrative machine, to its property and assets, and to the interests of which it is the guardian. It is clear that the UN has the capacity to bring a claim for this damage. As the claim is based on the breach of an international obligation on the part of the Member held responsible by the UN, the Member cannot contend that this obligation is governed by municipal law, and the UN is justified in giving its claim the character of an international claim. When the UN has sustained damage resulting from a breach by a Member of its international obligations, it is impossible to see how it can obtain reparation unless it possesses capacity to bring an international claim. It cannot be supposed that in such an event all the Members of the UN, save the defendant State, must combine to bring a claim against the defendant for the damage suffered by the UN. MEASURE OF REPARATION GUIDELINES. ICJ is not called upon to determine the precise extent of the reparation. It may, however, be said that the measure of the reparation should depend upon the amount of the damage which the UN has suffered as the result of the wrongful act or omission of the defendant State and should be calculated in accordance with the rules of international law. To illustrate, the damage would include the reimbursement of any reasonable compensation which the UN had to pay to its agent or to persons entitled through him and the expenditure in replacing a dead or disabled agent engaged upon a distant mission. RE QUESTION I (b). It can now be assumed that the UN has the capacity to bring a claim on the international plane, to negotiate, to conclude a special agreement and to prosecute a claim before an international tribunal. The only legal question which remains to be considered is whether, in the course of

Always will B

* bok * cj * tiff * gem * tin * 9bringing an international claim of this kind, the UN can recover 'the reparation due in respect of the damage caused .... to the victim....'. THE TRADITIONAL RULE THAT DIPLOMATIC PROTECTION IS EXERCISED BY THE NATIONAL STATE DOES NOT WARRANT A NEGATIVE ANSWER TO QUESTION I (B). Firstly, this rule applies to claims brought by a State. But here we have the new case of a claim that would be brought by the UN. Secondly, even in inter-State relations, there are important exceptions to the rule, for there are cases in which protection may be exercised by a State on behalf of persons not having its nationality. (asylum?) Thirdly, the rule rests on two bases. The first is that the defendant State has broken an obligation towards the national State in respect of its nationals. The second is that only the party to whom an international obligation is due can bring a claim in respect of its breach. This is precisely what happens when the UN, in bringing a claim for damage suffered by its agent, does so by invoking the breach of an obligation towards itself. Thus, the rule of the nationality of claims affords no reason against recognizing that the UN has the right to bring a claim for the damage referred to in Question I (b). On the contrary, the principle underlying this rule leads to the recognition of this capacity as belonging to the UN, when the UN invokes, as the ground of its claim, a breach of an obligation towards itself. NOR DOES THE ANALOGY OF THE TRADITIONAL RULE OF DIPLOMATIC PROTECTION OF NATIONALS ABROAD JUSTIFY IN ITSELF AN AFFIRMATIVE REPLY. It is not possible, by a strained use of the concept of allegiance, to assimilate the legal bond which exists, under Article 100 of the Charter, between the UN on the one hand, and the Secretary-General and the staff on the other, to the bond of nationality existing between a State and its nationals. COURT IS FACED WITH A NEW PROBLEM THE ANSWER OF WHICH LIES WITH THE CHARTER PROVISIONS CONSIDERED IN THE LIGHT OF THE PRINCIPLES OF INTERNATIONAL LAW.

QUESTION PRESUPPOSES THAT THE INJURY FOR WHICH THE REPARATION IS DEMANDED ARISES FROM A BREACH OF AN OBLIGATION DESIGNED TO HELP AN AGENT OF THE ORGANIZATION IN THE PERFORMANCE OF HIS DUTIES. It is not a case in which the wrongful act or omission would merely constitute a breach of the general obligations of a State concerning the position of aliens; claims made under this head would be within the competence of the national State and not, as a general rule, within that of the UN. 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. The Charter does not expressly confer upon the UN the capacity to include, in its claim for reparation, damage caused to the victim or to persons entitled through him. But under international law, the UN 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. This principle of law was applied by the Permanent Court of International Justice to the International Labour Organization in its Advisory Opinion No. 13 of July 23rd, 1926, and must be applied to the United Nations. NEED OF PROTECTION FOR THE AGENTS OF THE ORGANIZATION AS A CONDITION OF THE PERFORMANCE OF UN’S FUNCTIONS. Having regard to its purposes and functions, the UN may find it necessary to entrust its agents with important missions to be performed in disturbed parts of the world. Many missions, from their very nature, involve the agents in unusual dangers to which ordinary persons are not exposed. For the same reason, the injuries suffered by its agents in these circumstances will sometimes have occurred in such a manner that their national State would not be justified in bringing a claim for reparation on the ground of diplomatic protection, or, at any rate, would not feel disposed to do so. Both to ensure the efficient and independent performance of these missions and to afford effective support to its agents, the UN must provide them with adequate protection. (Best evidence that UN felt this need is the Whereas clause of the just cited Resolution which was approved unanimously by the members.) For this purpose, the Members of the UN have entered into certain undertakings, some of which are in the Charter and others in complementary agreements. The content of these undertakings need not be described here; but the Court must stress the importance of the duty to render to the UN 'every assistance' which is accepted by the Members in Article 2, paragraph 5, of the Charter WHEN AN INFRINGEMENT OCCURS, IT IS NECESSARY THAT THE ORGANIZATION SHOULD BE ABLED TO CALL UPON THE RESPONSIBLE STATE. It must be noted that the effective working of the UN-the accomplishment of its task, and the independence and effectiveness of the work of its agents-require that these undertakings should be strictly observed. For that purpose, it is necessary that, when an infringement occurs, the UN should be able to call upon the responsible State to remedy its default, and, in particular, to obtain from the State reparation for the damage that the default may have caused to its agent. ORGANIZATION HAS CAPACITY TO EXERCISE A MEASURE OF FUNCTIONAL PROTECTION OF ITS AGENTS. In order that the agent may perform his duties satisfactorily, he must feel that this protection is assured to him by the UN, and that he may count on it. To ensure the independence of the agent, and, consequently, the independent action of the UN itself, it is essential that in performing his duties he need not have to rely on any other protection than that of the UN (save of course for the more direct and immediate protection due from the State in whose territory he may be). In particular, he should not have to rely on the protection of his own State. If he had to rely on that State, his independence might well be compromised, contrary to the principle applied by Article 100 of the Charter. And lastly, it is essential that whether the agent belongs to a powerful or to a weak State; to one more affected or less affected by the complications of international life; to one in sympathy or not in sympathy with the mission of the agent-he should know that in the performance of his duties he is under the protection of the UN. This assurance is even more necessary when the agent is

Always will B

* bok * cj * tiff * gem * tin * 10stateless.

Upon examination of the character of the functions entrusted to the UN and of the nature of the missions of its agents, it becomes clear that the capacity of the UN to exercise a measure of functional protection of its agents arises by necessary intendment out of the Charter. ORGANIZATION WHEN BRINGING THIS CLAIM IS NOT ACTING AS THE AGENT’S REPRESENTATIVE BUT IS ASSERTING ITS OWN RIGHT, THE RIGHT TO SECURE RESPECT FOR UNDERTAKINGS ENTERED INTO TOWARDS THE ORGANIZATION. The obligations entered into by States to enable the agents of the UN to perform their duties are undertaken not in the interest of the agents, but in that of the UN. When it claims redress for a breach of these obligations, the UN is invoking its own right, the right that the obligations due to it should be respected. On this ground, it asks for reparation of the injury suffered, for 'it is a principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form'; as was stated by the Permanent Court in its Judgment No. 8 of July 26th, 1927. IN CLAIMING REPARATION, ORGANIZATION IS AUTHORIZED TO INCLUDE THE DAMAGE SUFFERED BY THE AGENT IN THE ASSESSMENT. Having regard to the foregoing considerations, and to the undeniable right of the UN to demand that its Members shall fulfill the obligations entered into by them in the interest of the good working of the UN, the Court is of the opinion that, in the case of a breach of these obligations, the UN has the capacity to claim adequate reparation, and that in assessing this reparation it is authorized to include the damage suffered by the victim or by persons entitled through him. ANOTHER ASPECT OF QUESTION I (A) AND (B): WHAT IF DEFENDANT STATE IS NOT A MEMBER OF UN? Accordingly the question is whether the UN has capacity to bring a claim against the defendant State to recover reparation in respect of that damage or whether, on the contrary, the defendant State, not being a member, is justified in raising the objection that the UN lacks the capacity to bring an international claim. On this point, the Court's opinion is that fifty States, representing the vast majority of the members of the international community, had the power, in conformity with international law, to bring into being an entity possessing objective international personality, and not merely personality recognized by them alone, together with capacity to bring international claims. Accordingly, the Court arrives at the conclusion that an affirmative answer should be given to Question I (a) and (b) whether or not the defendant State is a Member of the United Nations. THE AFFIRMATIVE REPLY GIVEN BY THE COURT ON POINT I (B) OBLIGES IT NOW TO EXAMINE QUESTION II. Question II is as follows: 'In the event of an affirmative reply on point I (b), how is action by the United Nations to be reconciled with such rights as may be possessed by the State of which the victim is a national?' STATE’S DIPLOMATIC RIGHT OF PROTECTION VS. UN’S RIGHT OF

FUNCTIONAL PROTECTION. When the victim has a nationality, cases can clearly occur in which the injury suffered by him may engage the interest both of his national State and of the UN. In such a case, there is no rule of law which assigns priority to the one or to the other, or which compels either the State or the UN to refrain from bringing an international claim. The Court sees no reason why the parties concerned should not find solutions inspired by goodwill and common sense, and as between the UN and its Members it draws attention to their duty to render 'every assistance' provided by Article 2, paragraph 5, of the Charter. Although the bases of the two claims are different, that does not mean that the defendant State can be compelled to pay the reparation due in respect of the damage twice over. International tribunals are already familiar with the problem of a claim in which two or more national States are interested, and they know how to protect the defendant State in such a case. The risk of competition between the UN and the national State can be reduced or eliminated either by a general convention or by agreements entered into in each particular case. There is no doubt that in due course a practice will be developed, and it is worthy of note that already certain States whose nationals have been injured in the performance of missions undertaken for the UN have shown a reasonable and co-operative disposition to find a practical solution. THAT THE AGENT IS A NATIONAL OF THE DEFENDANT STATE IS OF NO MOMENT SINCE THE ACTION OF THE UN IS BASED NOT UPON NATIONALITY OF THE VICTIM BUT UPON HIS STATUS AS AN AGENT OF THE UN. Therefore it does not matter whether or not the State to which the claim is addressed regards him as its own national, because the question of nationality is not pertinent to the admissibility of the claim. In law, therefore, it does not seem that the fact of the possession of the nationality of the defendant State by the agent constitutes any obstacle to a claim brought by the UN for a breach of obligations towards it occurring in relation to the performance of his mission by that agent. FOR THESE REASONS, The Court is of opinion On Question I (a): (i) unanimously, That, in the event of an agent of the United Nations in the performance of his duties suffering injury in circumstances involving the responsibility of a Member State, the United Nations as an Organization has the capacity to bring an international claim against the responsible de jure or de facto government with a view to obtaining the reparation due in respect of the damage caused to the United Nations. (ii) unanimously, That, in the event of an agent of the United Nations in the performance of his duties suffering injury in circumstances involving the responsibility of a State which is not a member, the United Nations as an Organization has the capacity to bring an international claim against the responsible de jure or de facto government with a view to obtaining the reparation due in respect of the damage caused to the United Nations. On Question I (b):

Always will B

* bok * cj * tiff * gem * tin * 11 (i) by eleven votes against four, That, in the event of an agent of the United Nations in the performance of his duties suffering injury in circumstances involving the responsibility of a Member State, the United Nations as an Organization has the capacity to bring an international claim against the responsible de jure or de facto government with a view to obtaining the reparation due in respect of the damage caused to the victim or to persons entitled through him. (ii) by eleven votes against four, That, in the event of an agent of the United Nations in the performance of his duties suffering injury in circumstances involving the responsibility of a State which is not a member, the United Nations as an Organization has the capacity to bring an international claim against the responsible de jure or de facto government with a view to obtaining the reparation due in respect of the damage caused to the victim or to persons entitled through him. On Question II: By ten votes against five, When the United Nations as an Organization is bringing a claim for reparation of damage caused to its agent, it can only do so by basing its claim upon a breach of obligations due to itself; respect for this rule will usually prevent a conflict between the action of the United Nations and such rights as the agent's national State may possess, and thus bring about a reconciliation between their claims; moreover, this reconciliation must depend upon considerations applicable to each particular case, and upon agreements to be made between the Organization and individual States, either generally or in each case.

MAVROMMATIS PALESTINE CONCESSIONS CASE (1924)Greece v. Britain PCIJ, Ser. B., No. 3, 1924.

FACTS: This dispute relates to Palestine and Britain’s wrongful refusal to recognize Mavrommatis’ rights acquired under contracts for public works to be done in Palestine. Greece took up Mavrommatis’ case as it is a Greek subject.

GREEK REPUBLIC FILED AN APPLICATION INSTITUTING PROCEEDINGS AGAINST PALESTINE AND GREAT BRITAIN. On 13 May 1924, the Greek Republic filed an application instituting proceedings against the Government of Palestine, and consequently, the British Government in its capacity as “Mandatory of Palestine” due to Palestine’s refusal to recognize the rights acquired by M. Mavrommatis in the nature of concessions for public works.

GREECE ASKS FOR JUDGMENT WITH RESPECT TO 2 GROUPS OF CONCESSIONS. Greece asks that the court for judgment on the following: [1] the Jerusalem concessions dealing with the construction of an electric tramway

system, and the supply of electric light and drinking water; [2] the Jaffa concessions dealing with the supply of electric light and drinking water in Jaffa, and the irrigation of gardens from the waters of El-Hodja.

GREECE’S PRAYER. Greece prays that the court, with respect to the Jerusalem concessions, declare that Britain is bound to respect the concession and that by rendering impossible the carrying out of the works, Britain must pay compensation

Greece prays that the court, with respect to the Jaffu concessions, adjudge that the Britain is not justified in not recognizing the concessions just because they were granted after October 29, 1914, or that they were not confirmed by Imperial Irade. Thus, Britain should pay compensation.

BRITAIN’S OBJECTION BASED ON LACK OF JURISDICTION. On 16 June 1924, Britain made an objection on the ground that the Permanent Court of International Justice (PCIJ) has no jurisdiction to try the case.

BASIS FOR JURISDICTION GIVEN TO PCIJ. The general basis of the jurisdiction of the PCIJ is set down in Article 34 and 36 of the Statute which states that first, only States or Members of the League of Nations may appear before it. Second, the PCIJ has jurisdiction to hear and determine “all cases which the Parties refer to it and all matters specially provided for in Treaties and Conventions in force".

GREECE CITES SOURCES AS BASIS OF JURISDICTION. In its Application, Greece relies on the following: [1] Article 9, Protocol XII annexed to the Peace Treaty of Lausanne of July 24th, 1923; [2] Articles 11 and 26 of the Mandate for Palestine conferred on His Britannic Majesty on July 24th, 1922; [3] Article 36, first paragraph, Statute of the Court; [4] Article 40, Statute of the Court; and [5] Article 35, paragraph 2, of the Rules of Court.

COURT SAYS IT IS ESSENTIAL TO DETERMINE IF THE CONDITIONS IN ART 26 OF THE MANDATE IS COMPLIED WITH. This article defines and limits the jurisdiction of the PCIJ.

Article 26 of the Mandate for Palestine states:

"The Mandatory agrees that, if any dispute whatever should arise between the Mandatory and another Member of the League of Nations relating to the interpretation or the application of the provisions of the Mandate, such dispute, if it cannot be settled by negotiation, shall be submitted to the Permanent Court of International Justice provided for by Article 14 of the Covenant of the League of Nations."

Questions on whether this article applies include: [1] WON there is a dispute between the Mandatory and another Member of the League of Nations. [2] WON it a dispute which cannot be settled by negotiation.

Always will B

* bok * cj * tiff * gem * tin * 12[3] WON the dispute relates to the interpretation or the application of the provisions of the Mandate.

PRESENT SUIT IS A DISPUTE. A dispute is defined as a “disagreement on a point of law or fact, a conflict of legal views or of interests between 2 persons.” Greece is asserting its rights by claiming indemnity from Britain arguing that Britain treated Mavrommatis in “a manner incompatible with certain international obligations which they are bound to observe.”

DISPUTE ENTERED THE DOMAIN OF INTERNATIONAL LAW. At first, the dispute was between a private person (Mavrommatis) and a State (Britain). But Greece took up Mavrommatis’ case so it is now a dispute in international law.

SUIT IS BETWEEN THE MANDATORY AND ANOTHER MEMBER OF THE LEAGUE. First, Greece belongs to the League of Nations. Second, a state can take up the case of its subjects when injured by acts contrary to international law committed by another State, from whom they have been unable to obtain satisfaction through the ordinary channels. So WON a dispute originates in a personal injury is irrelevant. Greece, in the eyes of Britain, is the sole claimant.

GREECE IS ACTUALLY ASSERTING ITS OWN RIGHTS. Greece has the right to ensure respect for rules of international law. It is not substituting itself with the citizen, but is actually asserting its own rights.

BRITAIN ARGUES THAT IT COULD NOT BE SETTLED BY NEGOTIATIONS. Britain argues that there were no proper negotiations aside from the correspondence between Mavrommatis and Britain.

COURT HELD THERE WERE NEGOTIATIONS. Court said lengthy dispatches are not necessary. It is sufficient that discussions are initiated, albeit short.

DISPUTE CANNOT BE SETTLED BY NEGOTIATIONS. Although negotiations between governments commence where previous discussions left off, there is here a case where renewed discussion would be a superfluity since firstly, negotiations between Mavrommatis and Britain covered the points on which Greece relies.

There was indeed a dispute that could not be settled by negotiations because Britain stated that it was indisposed to enter into direct negotiation in 2 separate letters dated 22 January 1923 and 2 February 1923.

Also, the Greek Legation wrote London asking if Britain could meet the claims of Mavrommatis. A note by His Britannic Majesty’s Secretary of State for Foreign Affairs dated 1 April 1924 was regarded by Greece as a negative reply. This letter stated that the competent department to which the negotiations had been entrusted had already fully and carefully examined the question.

For Greece, there was no hope of reaching a settlement by further negotiation. The Court shall respect the views of states.

BRITAIN ARGUES THAT JURISDICTION IS LIMITED TO CERTAIN DISPUTES. Britain’s contention is that jurisdiction is limited to certain categories of disputes which are determined according to a legal criterion (the interpretation and application of the terms of the Mandate), and tends therefore to assert the general rule that States may or may not submit their disputes to the Court at their discretion.

GREECE CITES ARTICLE 11 OF THE MANDATE AS BASIS FOR JURISDICTION. Greek Government cites Article 11 of the Mandate:

"The Administration of Palestine shall take all necessary measures to safeguard the interests of the community in connection with the development of the country, and, subject to any international obligations accepted by the Mandatory, shall have full power to provide for public ownership or control of any of the natural resources of the country or of the public works, services and utilities established or to be established therein. It shall introduce a land system appropriate to the needs of the country, having regard among other things to the desirability of promoting the close settlement and intensive cultivation of the land.

"The Administration may arrange with the Jewish Agency mentioned in Article 4 to construct or operate, upon fair and equitable terms, any public works, services and utilities, and to develop any of the natural resources of the country, in so far as these matters are not directly undertaken by the Administration. Any such arrangements shall provide that no profits distributed by such agency, directly or indirectly, shall exceed a reasonable rate of interest on the capital, and any further profits shall be utilised by it for the benefit of the country in a manner approved by the Administration."

The court says that judgment should be based principally on the first part of paragraph 1 of Article 11 (underlined). This article relates to WON Britain disregarded its international obligation assumed under the Mandatory.

ARTICLE 11 REGULATES PALESTINE ADMINISTRATION’S POWERS. Regulation is with regard to [1] public ownership or control of the natural resources of the country or of the public works, services and utilities; [2] the introduction of a land system appropriate to the needs of the country and, [3] arrangements with the Jewish agency to constructor operate, upon fair and equitable terms, any public works, services and utilities and to develop any of the natural resources of the country.

FRENCH VERSION OF ARTICLE 11 IS BROADER. According to the version, the Palestine Administration’s power may cover every kind of decision regarding public ownership and every form of control which the Administration may exercise

Always will B

* bok * cj * tiff * gem * tin * 13either as regards the development of the natural resources of the country or over public works, services and utilities.

As a result, the right to grant concessions, as also the right to cancel existing concessions, might fall within the terms of the French version.

BUT COURT ADOPTS THE STRICTER ENGLISH VERSION OF ARTICLE 11. Version is more restrictive because it contemplates only the acquisition of public ownership or public control over natural resources or over the public works, services and utilities established or to be established therein.

Court adopts this version because it is in accordance with the common intention of the Parties considering the question concerns an instrument laying down the obligations of Britain in her capacity as Mandatory for Palestine and because the original draft of this instrument was probably made in English.

PUBLIC CONTROL MEANS THE METHODS WHEREBY THE PUBLIC ADMINISTRATION TAKES OVER UNDERTAKINGS NOT PUBLICLY ALLOWED. Public control cannot be employed to describe practically all acts of public authority. It means measures of a special character in connection with an economic policy consisting in subordinating, in one way or another, private enterprise to public authority.

Public control does not refer exclusively to cases where a public administration itself takes in hand an undertaking. Thus, the term includes the grant of a concession of public utility to an individual/company.

GREECE ARGUES BRITAIN IS RESPONSIBLE FOR THE GRANT OF THE RUTENBERG CONCESSION. Greece argues that the Administration of Palestine, by arranging with the Jewish agency for the construction or operation of the works or of a portion of the works for which Mavrommatis already held concessions and not paying the latter compensation, had disregarded the international obligations of the Mandatory.

GREECE’s ARGUMENT IN A NUTSHELL. Greece argues that the case falls under Article 11 of the Mandate because the first sentence states, "subject to any international obligations accepted by the Mandatory". These words mean that for the purposes of Article 26, the Lausanne Protocol XII forms part of Article 11 of the Mandate

The grant of the Rutenberg Concession was an exercise of the power conferred in the first sentence of Article 11 to provide for public ownership or control. Therefore, this grant is in breach of the Protocol which recognizes the Mavrommatis Concessions subject to certain conditions.

GRANT OF THE RUTENBERG CONCESSION GAVE RISE TO THE ACQUISITION OF PUBLIC CONTROL. The Rutenberg

concessions constitute an application by the Administration of Palestine of the system of, "public control" with the object of developing the natural resources of the country and of operating public works, services and utilities. Thus, the concession falls under Article 11.

Reasons for this conclusion are the following:

[1] Article 28 of the Rutenberg concessions expressly lays down that:

"the undertaking of the company under this concession shall be recognized as a public utility Body under Government control."

This is a recognition of the undertaking as a public utility body.

[2] Article 4 of the Mandate shows that the Jewish agency is in reality a public body, closely connected with the Palestine Administration and that its task is to co-operate. It states:

"An appropriate Jewish agency shall be recognised as a public body for the purpose of advising and co-operating with the Administration of Palestine in such economic, social and other matters as may affect the establishment of the Jewish national home and the interests of the Jewish population in Palestine, and, subject always to the control of the Administration, to assist and take part in the development of the country.

[3] passage in the Preliminary Counter-case filed by Britain on June 16th, 1924 refers to the international obligations accepted by the Mandatory. It states:

"The concessions granted to Mr. Rutenberg in September, 1921, for the development of electrical energy and water power in Palestine were obliged to conform to this Article 11, and it would have been open to any Member of the League to question provisions in those concessions which infringed the international obligations which His Britannic Majesty as Mandatory for Palestine had accepted.”

[4] British Agent's oral pleading

INTERNATIONAL OBLIGATIONS; OPPOSING CONTENTIONS. Greece argues that “international obligations accepted by the Mandatory", referred to in Article 11 of the Mandate are all international obligations in general

On the other hand, Britain argues that only various beneficent principles are intended such as freedom of transit and communications, equality of commercial opportunity for all Members of the League, suppression of the arms traffic, etc. Also, the reservation made in Article 11 regarding internationalobligations is a mere statement of fact devoid of immediate legal value.

Always will B

* bok * cj * tiff * gem * tin * 14

INTERNATIONAL OBLIGATIONS; COURT’S REASONING. The Court looked into the draft of the Mandate. It was prepared when it was thought that the Treaty of Sévres would shortly be ratified, the clause under discussion was worded as follows : "subject to Article 311 of the Treaty of Peace with Turkey", the article of the Mandate being in other respects identical with the final text.

But the Treaty of Sévres never came into force. While the new Peace Treaty with Turkey had not yet been drafted, in order to avoid delay in the adoption of the Mandate, the reference to theTreaty of Sévres was replaced by the words "international obligations accepted by the Mandatory.”

This phrase therefore includes the provisions which were to take the place of the provisions of Article 311 of the Treaty of Sévres.

Since Article 311 of the Treaty of Sévres dealt with concessions in territories detached from Turkey and as that article is now replaced by Protocol XII of the Treaty of Lausanne, it follows that "the international obligations accepted by the Mandatory", referred to in Article 11 of the Mandate, certainly include the obligations arising out of Protocol XII of the Lausanne Treaty (Protocol relating to certain Concessions granted in the Ottoman Empire).

Since the Rutenberg concessions fall within the scope of Article 11 of the Mandate, the Palestine Administration is bound to respect obligations which Britain has accepted under Protocol XII.

If the Administration has, by granting the Rutenberg concessions, committed a breach of these obligations, there has been an infringement of the terms of Article 11 of the Mandate which may be made the subject of an action before the Court under Article 26.

COURT HAS JURISDICTION OVER THE DISPUTE CONCERNING THE JERUSALEM CONCESSIONS. The dispute between Britain and Greece concerning Mavrommatis' claim in respect of the Jerusalem concessions must be decided on the basis of Article 11 of the Mandate. Consequently, it is within the category of disputes for which the Mandatory has accepted the jurisdiction of the Court.

The fundamental principle of Protocol XII is the maintenance of concessionary contracts concluded before October 29th, 1914.

Beneficiaries under concessionary contracts entered into before that date are entitled to have their contracts readapted to the new economic conditions. Considering the Jerusalem concessions dated from before October 29th, 1914, it must therefore be dealt with in accordance with the terms of Protocol XII.

COURT HAS NO JURISDICTION OVER THE DISPUTE CONCERNING THE JAFFA CONCESSIONS. Dispute over the Jaffa concessions has no connection with Article 11 of the Mandate. Therefore, it does not fall within the category of disputes for which the Mandatory has accepted the jurisdiction of the Court.

These concessions, although started with preliminary agreements dated January 27 and March 6 1914, the Ministry of Public Works at Constantinople authorised the District of Palestine to grant the proposed concessions. They were not converted into concessions duly signed by the Ottoman authorities until January 28, 1916.

Protocol XII is silent regarding concessions subsequent toOctober 29, 1914, and leaves intact the general principle of subrogation. However, it should be noted that it cannot be maintained that this principle falls within the international obligations contemplated in Article 11 of the Mandate.

Therefore, the Administration of Palestine would be bound to recognize the Jaffa concessions, not in consequence of an obligation undertaken by the Mandatory, but in virtue of a general principle of international law.

BRITAIN ARGUES THAT THERE IS NO JURISDICTION. Britain’s submission that the PCIJ has no jurisdiction is buttressed by 2 arguments: [1] Article 26 of the Mandate is not applicable; [2] the only international instrument dealing with the recognition of concessions in Palestine is Protocol XII, and since this instrument contains no provision giving PCIJ jurisdiction to decide disputes relating to the interpretation or application of that Protocol.

PROTOCOL SHOULD PREVAIL OVER THE MANDATE. This is because the Protocol is of a special and more recent agreement. Also, it deals specifically and in explicit terms with concessions such as those of Mavrommatis, whereas Article 11 of the Mandate deals with them only implicitly.

HOWEVER, PCIJ STILL HAS JURISDICTION. Althouhg respect for Protocol XII, in so far as it constitutes a body of rules applicable in Palestine as concerns any Member of the League ofNations, is assured by Article 11 of the Mandate, the provision of Article 26 definitely establishing the jurisdiction of the Court in disputes relating to Article 11 cannot be in any way affected by the silence of the Protocol regarding this jurisdiction.

PROTOCOL AND MANDATE ARE NOT INCOMPATIBLE. It is only the provisions of the Protocol concerning procedure which may be regarded as incompatible with the jurisdiction derived by the Court from Article 11.

Protocol XII was drawn up in order to fix the conditions governing the recognition and treatment by the contracting Parties of certain concessions granted by the Ottoman authorities before the conclusion of the Protocol.

Always will B

* bok * cj * tiff * gem * tin * 15

FOR THESE REASONS

The Court

[1] Upholds the preliminary objection submitted by Britain insofar as it relates to the claim in respect of the works at Jaffa; and

[2] Dismisses it in so far as it relates to the claim in respect of the works at Jerusalem; and

[3] Reserves this part of the suit for judgment on the merits;

CERTAIN EXPENSES OF THE UNITED NATIONS; ICJ Summary

The question of certain expenses of the United Nations (Article 17, paragraph 2, of the Charter) had been put to the Court for an advisory opinion by a resolution adopted by the General Assembly of the United Nations of 20 December 1961.

By nine votes to five the Court declared that the expenditures authorized in certain General Assembly resolutions enumerated in the request for opinion, relating to the United Nations operations in the Congo and in the Middle East undertaken in pursuance of Security Council and General Assembly resolutions likewise enumerated in the request were "expenses of the Organization" within the meaning of Article 17, paragraph 2, of the Charter of the United Nations.

Judges Sir Percy Spender, Sir Gerald Fitzmaurice and Morelli appended to the Opinion of the Court statements of their Separate Opinions. President Winiarski and Judges Basdevant, Moreno Quintana, Koretsky and Bustamante y Rivero appended to the Opinion of the Court statements of their Dissenting Opinions.* * *The President of the Court, in pursuance of Article 66, paragraph 2, of the Statute, having considered that the States Members of the United Nations were likely to be able to furnish information on the question, fixed 20 February 1962 as the time-limit within which the Court would be prepared to receive written statements from them. The following Members of the United Nations submitted statements, notes or letters setting forth their views: Australia, Bulgaria, Byelorussian Soviet Socialist Republic, Canada Czechoslovakia Denmark, France, Ireland, Italy, Japan the Netherlands, Portugal, Romania, South Africa, Spain, Ukrainian Soviet Socialist Republic, Union of Soviet Socialist Republics, United Kingdom of Great Britain and Northern Ireland, United States of America and Upper Volta. At hearings held from 14 to 21 May the Court heard oral statements by the representatives of Canada, the Netherlands, Italy, the United Kingdom of Great Britain and Northern Ireland, Norway, Australia, Ireland, the Union of Soviet Socialist Republics and the United States of America.* * *In its opinion the Court first recalled that it had been argued that the Court should refuse to give an opinion, the question put to it being of a political nature, and declared that it could not attribute a political character to a request which invited it to undertake an essentially judicial task, namely the interpretation of a treaty provision. In this connection the Court recalled the principles previously stated by the Permanent Court of International Justice in the Advisory Opinion concerning the Status of Eastern Carelia and by the present Court in the Advisory Opinions concerning the Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (First Phase) and Judgments of the Administrative Tribunal of the

ILO upon Complaints made against Unesco, and found no "compelling reason" why it should not give the advisory opinion which the General Assembly had requested of it.** *The Court then examined the view that it should take into consideration the rejection of a French amendment to the request for advisory opinion. The amendment would have asked the Court to give an opinion on the question whether the expenditures related to the indicated operations had been "decided on in conformity with the provisions of the Charter".

On this point the Court observed that the rejection of the French amendment did not constitute a directive to the Court to exclude from its consideration the question whether certain expenditures were "decided on in conformity with the Charter", if the Court found such consideration appropriate. Nor could the Court agree that the rejection of the French amendment had any bearing upon the question whether the General Assembly had sought to preclude the Court from interpreting Article 17 in the light of other articles of the Charter, that is, in the whole context of the treaty.** *Turning then to the question which had been posed, the Court found that it involved an interpretation of Article 17, paragraph 2, of the Charter, and that the first question was that of identifying what are "the expenses of the Organization".The text of Article 17, paragraph 2, referred to "the expenses of the Organization" without any further explicit definition. The interpretation of the word "expenses" had been linked with the word "budget" in paragraph 1 of that Article and it had been contended that in both cases the qualifying adjective "regular" or "administrative" should be understood to be implied. According to the Court this would be possible only if such qualification must necessarily be implied from the provisions of the Charter considered as a whole.

Concerning the word "budget" in paragraph 1 of Article 17, the Court found that the distinction between "administrative budgets" and "operational budgets" had not been absent from the minds of the drafters of the Charter since it was provided in paragraph 3 of the same Article that the General Assembly "shall examine the administrative budgets" of the specialized agencies: if the drafters had intended that paragraph 1 should be limited to the administrative budget of the United Nations organization itself, the word "administrative" would have been inserted in paragraph 1 as it had been in paragraph 3. Actually, the practice of the Organization had been from the outset to include in the budget items which would not fall within any of the definitions of "administrative budget" which had been advanced. The General Assembly had consistently included in the annual budget resolutions provision for "unforeseen and extraordinary expenses" arising in relation to the "maintenance of peace and security". Every year from 1947 through 1959 the resolutions on these unforeseen and extraordinary expenses have been adopted without a dissenting vote, except for 1952, 1953 and 1954, owing to the fact that in those years the resolution included the specification of a controversial item-United Nations Korean war decorations. Finally, in 1961, the report of the Working Group of Fifteen on the Examination of the Administrative and Budgetary Procedures of the United Nations had recorded the adoption without opposition of a statement that "investigations and observation operations undertaken by the Organization to prevent possible aggression should be financed as part of the regular budget of the United Nations." Taking these facts into consideration, the Court concluded that there was no justification for reading into the text of Article 17, paragraph 1, any limiting or qualifying word before the word "budget".** *Turning to paragraph 2 of Article 17, the Court observed that, on its face, the term "expenses of the Organization" meant all the expenses and not just certain types of expenses which might be referred to as "regular expenses". Finding that an examination of other parts of the Charter showed the variety of expenses which must inevitably be included within the "expenses of the Organization", the Court did not perceive any basis for challenging the legality of the settled practice of including such expenses in the budgetary amounts which

Always will B

* bok * cj * tiff * gem * tin * 16the General Assembly apportioned among the Members in accordance with the authority which was given to it by Article 17, paragraph 2.** *Passing then to the consideration of Article 17 from the standpoint of its place in the general structure and scheme of the Charter, the Court found that the general purposes of that Article were the vesting of control over the finances of the Organization and the levying of apportioned amounts of the expenses of the Organization. Replying to the argument that expenses resulting from operations for the maintenance of international peace and security were not "expenses of the Organization" within the meaning of Article 17, paragraph 2, of the Charter, inasmuch as they fell to be dealt with exclusively by the Security Council, and more especially through agreements negotiated in accordance with Article 43 of the Charter, the Court found that under Article 24 the responsibility of the Security Council in the matter was "primary", not exclusive. The Charter made it abundantly clear that the General Assembly was also to be concerned with international peace and security. Under paragraph 2 of Article 17 the General Assembly was given the power to apportion the expenses among the Members, which created the obligation of each to bear that part of the expenses which was apportioned to it. When those expenses included expenditures for the maintenance of peace and security, which were not otherwise provided for, it was the General Assembly which had the authority to apportion the latter amounts among the Members. None of the provisions determining the respective functions and powers of the Security Council and the General Assembly supported the view that such distribution excluded from the powers of the General Assembly the power to provide for the financing of measures designed to maintain peace and security.

Replying to the argument that with regard to the maintenance of international peace and security the budgetary authority of the General Assembly is limited by Article 11, paragraph 2, under which "any such question [relating to the maintenance of international peace and security] on which action is necessary shall be referred to the Security Council by the General Assembly either before or after discussion" the Court considered that the action referred to in that provision was coercive or enforcement action. In this context, the word "action" must mean such action as was solely within the province of the Security Council, namely that indicated by the title of Chapter VII of the Charter: "action with respect to threats to the peace, breaches of the peace, and acts of aggression". If the interpretation of the word "action" in Article 11, paragraph 2, were that the General Assembly could make recommendations only of a general character affecting peace and security in the abstract, and not in relation to specific cases, the paragraph would not have provided that the General Assembly might make recommendations on questions brought before it by States or by the Security Council. Accordingly, the last sentence of Article 11, paragraph 2, had no application where the necessary action was not enforcement action.

The Court found therefore that the argument drawn from Article 11, paragraph 2, to limit the budgetary authority of the General Assembly in respect of the maintenance of international peace and security was unfounded.** *The Court then turned to the examination of the argument drawn from Article 43 of the Charter which provides that Members shall negotiate agreements with the Security Council on its initiative, for the purpose of maintaining international peace and security. The argument was that such agreements were intended to include specifications concerning the allocation of costs of such enforcement actions as might be taken by direction of the Security Council, and that it was only the Security Council which had the authority to arrange for meeting such costs.

After stating that Article 43 was not applicable, the Court added that even if it were applicable, the Court could not accept such an interpretation of its text for the following reasons. A Member State would be entitled, during the negotiation of such agreements, to

insist, and the Security Council would be entitled to agree, that some part of the expense should be borne by the Organization. In that case such expense would form part of the expenses of the Organization and would fall to be apportioned by the General Assembly under Article 17. Moreover, it followed from Article 50 of the Charter that the Security Council might determine that an overburdened State was entitled to some financial assistance. Such financial assistance, if afforded by the Organization, as it might be, would clearly constitute part of the "expenses of the Organization". Furthermore, the Court considered that it could not be said that the Charter had left the Security Council impotent in the face of an emergency situation when agreements under Article 43 had not been concluded. It must lie within the power of the Security Council to police a situation even though it did not resort to enforcement action against a State. The costs of actions which the Security Council was authorized to take therefore constituted "expenses of the Organization within the meaning of Article 17, paragraph 2".

Having considered the general problem of the interpretation of Article 17, paragraph 2, in the light of the general structure of the Charter and of the respective functions of the General Assembly and the Security Council, with a view to determining the meaning of the phrase "the expenses of the Organization", the Court proceeded to examine the expenditures enumerated in the request for the advisory opinion. It agreed that such expenditures must be tested by their relationship to the purposes of the United Nations in the sense that if an expenditure were made for a purpose which was not one of the purposes of the United Nations it could not be considered an "expense of the Organization". When the Organization took action which warranted the assertion that it was appropriate for the fulfilment of one of the purposes of the United Nations set forth in Article 1 of the Charter, the presumption was that such action was not ultra vires the Organization. If the action were taken by the wrong organ, it was irregular, but this would not necessarily mean that the expense incurred was not an expense of the Organization. Both national and international law contemplated cases in which the body corporate or politic might be bound by an ultra vires act of an agent. As the United Nations Charter included no procedure for determining the validity of the acts of the organs of the United Nations, each organ must, in the first place at least, determine its own jurisdiction. If the Security Council adopted a resolution purportedly for the maintenance of international peace and security and if, in accordance with such resolution, the Secretary-General incurred financial obligations, those amounts must be presumed to constitute "expenses of the Organization". Recalling its Opinion concerning Effects of Awards of Compensation made by the United Nations Administrative Tribunal, the Court declared that obligations of the Organization might be incurred by the Secretary-General acting on the authority of the Security Council or of the General Assembly, and that the General Assembly "has no alternative but to honour these engagements".

This reasoning, applied to the resolutions mentioned in the request for the advisory opinion, might suffice as a basis for the opinion of the Court. The Court went on, however, to examine separately the expenditures relating to the United Nations Emergency Force in the Middle East (UNEF) and those relating to the United Nations operations in the Congo (ONUC).

As regards UNEF, the Court recalled that it was to be set up with the consent of the Nations concerned, which dismissed the notion that it constituted measures of enforcement. On the other hand, it was apparent that the UNEF operations were undertaken to fulfil a prime purpose of the United Nations, that is, to promote and maintain a peaceful settlement of the situation. The Secretary-General had therefore properly exercised the authority given him to incur financial obligations; the expenses provided for by such obligations must be considered "expenses of the Organization". Replying to the argument that the General Assembly never, either directly or indirectly, regarded the expenses of UNEF as "expenses of the Organization within the meaning of Article 17, paragraph 2, of the Charter", the Court stated that it could not agree with this interpretation. Analysing the resolutions relating to the

Always will B

* bok * cj * tiff * gem * tin * 17financing of UNEF, the Court found that the establishment of a special account did not necessarily mean that the funds in it were not to be derived from contributions of Members as apportioned by the General Assembly. The resolutions on this matter, which had been adopted by the requisite two-thirds majority, must have rested upon the conclusion that the expenses of UNEF were "expenses of the Organization" since otherwise the General Assembly would have had no authority to decide that they "shall be borne by the United Nations" or to apportion them among the Members. The Court found therefore that, from year to year, the expenses of UNEF had been treated by the General Assembly as expenses of the Organization within the meaning of Article 17, paragraph 2.** *Turning next to the operations in the Congo, the Court recalled that they had been initially authorized by the Security Council in the resolution of 14 July 1960, which had been adopted without a dissenting vote. The resolution, in the light of the appeal from the Government of the Congo, the report of the Secretary-General and the debate in the Security Council, had clearly been adopted with a view to maintaining international peace and security. Reviewing the resolutions and reports of the Secretary-General relating to these operations, the Court found that in the light of such a record of reiterated consideration, confirmation, approval and ratification by the Security Council and by the General Assembly of the actions of the Secretary-General, it was impossible to reach the conclusion that the operations in the Congo usurped or impinged upon the prerogatives conferred by the Charter of the Security Council. These operations did not involve "preventive or enforcement measures" against any State under Charter VII and therefore did not constitute "action" as that term was used in Article 11. The financial obligations which the Secretary-General had incurred, in accordance with the clear and reiterated authority of both the Security Council and the General Assembly, constituted obligations of the Organization for which the General Assembly was entitled to make provision under the authority of Article 17, paragraph 2, of the Charter.

In relation to the financing of the operations in the Congo, the Court, recalling the General Assembly resolutions contemplating the apportionment of the expenses in accordance with the scale of assessment for the regular budget, concluded therefrom that the General Assembly had twice decided that even though certain expenses were "extraordinary" and "essentially different" from those under the "regular budget", they were none the less "expenses of the Organization" to be apportioned in accordance with the power granted to the General Assembly by Article 17, paragraph 2.** *Having thus pointed out on the one hand that the text of Article 17, paragraph 2, of the Charter could lead to the conclusion that the expenses of the Organization were the amounts paid out to defray the costs of carrying out the purposes of the Organization, and on the other hand that the examination of the resolutions authorizing the expenditures referred to in the request for the advisory opinion had led to the finding that they had been incurred with that end in view and having also analyzed and found unfounded the arguments which had been advanced against the conclusion that the expenditures in question should be considered as expenses of the Organization within the meaning of Article 17, paragraph 2, of the Charter of the United Nations, the Court arrived at the conclusion that the question submitted to it by the General Assembly must be answered in the affirmative.

CERTAIN EXPENSES OF THE UNITED NATIONS (JULY 20, 1962)

FACTS. The Acting Secretary-General informed the President of the Court in a letter that the General Assembly, by a resolution adopted on 20 December 1961, had decided to request the International Court of Justice to give an advisory opinion on the following question : "Do the expenditures authorized in General

Assembly resolutions 1583 (XV) and 1590 (XV) of 20 December 1960, 1595 (XV) of 3 April 1961, 1619 (XV) of 21 April 1961 and 1633 (XVI) of 30 October 1961 relating to the United Nations operations in the Congo undertaken in pursuance of the Security Council resolutions of 14 July, 22 July and 9 August 1960, and 21 February and 24 November 1961, and General Assembly resolutions 1474 (ES-IV) of 20 September 1960 and 1599 (XV), 1600 (XV) and 1601 (XV) of 15 April1961, and the expenditures authorized in General Assembly resolutions 1122 (XI) of 26 November 1956, 1089 (XI) of 21 December 1956, 1090 (XI) of 27 February 1957, 1151 (XII) of 22 November 1957, 1204 (XII) of 13 December 1957, 1337 (XIII) of 13 December 1958, 14.41 (XIV) of 5 December 1959 and 1575 (XV) of 20 December 1960 relating to the operations of the United Nations Emergency Force undertaken in pursuance of General Assembly resolutions 997 (ES-1) of 2 November 1956, 998 (ES-1) and 999 (ES-1) of 4 November 1956, 1000 (ES-1) of 5 November 1956, 1001 (ES-1) of 7 November 1956, 1121 (XI) of 24 November 1956 and 1263 (XIII) of 14 November 1958, constitute 'expenses of the Organization' within the meaning of Article 17, paragraph 2, of the Charter of the United Nations?"

COURT’S PRELIMINARY REMARKS ON JURISDICTION The power of the Court to give an advisory opinion is derived from Article 65 of the Statute. The power granted is of a discretionary character. The Court, being a Court of Justice, cannot, even in giving advisory opinions, depart from the essential rules guiding their activity as a Court. Therefore, and in accordance with Article 65 of its Statute, the Court can give an advisory opinion only on a legal question. But even if the question is a legal one, which the Court is undoubtedly competent to answer, it may nonetheless decline to do so.

The Court finds no "compelling reason" why it should not give the advisory opinion which the General Assembly requested by its resolution 1731 (XVI). It has been argued that the question put to the Court is intertwined with political questions, and that for this reason the Court should refuse to give an opinion. The Court, however, cannot attribute a political character to a request which invites it to undertake an essentially judicial task, namely, the interpretation of a treaty provision.

In the preamble to the resolution requesting this opinion, the General Assembly expressed its recognition of "its need for authoritative legal guidance". In its search for such guidance it has put to the Court a legal question-a question of the interpretation of Article 17, paragraph 2, of the Charter of the United Nations.

ISSUE: Whether certain expenditures which were authorized by the General Assembly to cover the costs of the UN operations in the Congo (ONUC) and of the operations of the UN Emergency Force in the Middle East (UNEF), "constitute 'expenses of the Organization' within the meaning of Article 17, paragraph 2, of the Charter of the United Nations". ARTICLE 171. The General Assembly shall consider and approve the budget of the Organization.

Always will B

* bok * cj * tiff * gem * tin * 182. The expenses of the Organization shall be borne by the Members as apportioned by the General Assembly.

Although the Court will examine Article 17 in itself and in its relation to the rest of the Charter, it should be noted that at least three separate questions might arise in the interpretation of paragraph 2 of this Article:

1) What are "the expenses of the Organization?" 2) Apportionment by the General Assembly3) Interpretation of the phrase "shall be borne by the Members"

It is the second and third questions which directly involve "the financial obligations of the Members", but it is only the first question which is posed by the request for the advisory opinion.

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

DEFINITION OF EXPENSES The text of Article 17, paragraph 2, refers to "the expenses of the Organization" without any further explicit definition of such expenses. It would be possible to begin with a general proposition to the effect that the "expenses" of any organization are the amounts paid out to defray the costs of carrying out its purposes, in this case, the political, economic, social, humanitarian and other purposes of the United Nations. The next step would be to examine, as the Court will, whether the resolutions authorizing the operations here in question were intended to carry out the purposes of the United Nations and whether the expenditures were incurred in furthering these operations

But the Court has not been asked to give an abstract definition of the words "expenses of the Organization". It has been asked to answer a specific question related to certain identified expenditures which have actually been made, but the Court would not adequately discharge the obligation incumbent on it unless it examined in some detail various problems raised by the question which the General Assembly has asked.

ARGUMENT: EXPENSES SHOULD BE QUALIFIED. It is perhaps the simple

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

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

EXAMPLE The General Assembly in drawing up and approving the Constitution of the International Refugee Organization, divided the budget of the organization under the headings "administrative", "operational" and "large-scale resettlement"; but no such distinctions were introduced into the Financial Regulations of the United Nations which were adopted by unanimous vote in 1950, and which remain unchanged. These regulations speak only of "the budget" and do not provide any distinction between "administrative' and "operational".

There have been numerous references in GA sesstions to the idea of distinguishing an "operational" budget; Some consider:

1) such a distinction is a useful book-keeping device 2) it in connection with the possibility of differing scales of assessment or

apportionment; 3) it should mark a differentiation of activities to be financed by voluntary

contributions. But these discussions have not resulted in the adoption of two separate

budgets based upon such a distinction.

THE PRACTICE OF THE ORGANIZATION IS CONSISTENT WITH THE PLAIN MEANING OF THE TEXT The budget of the Organization has from the outset included items which would not fall within any of the definitions of "administrative

Always will B

* bok * cj * tiff * gem * tin * 19budget'' which have been advanced in this connection.

EXAMPLE Prior to the establishment of, and now in addition to, the "Expanded Programme of Technical Assistance" and the "Special Fund", both of which are nourished by voluntary contributions, the annual budget of the Organization contains provision for funds for technical assistance; in the budget for the financial year 1962, the sum of $6,4oo,ooo is included for the technical programmes of economic development, social activities, human rights activities, public administration and narcotic drugs control. Although there was a suggestion that all technical assistance costs should be excluded from the regular budget, the items under these heads were all adopted on second reading without a dissenting vote. The "operational" nature of such activities so budgeted is indicated by the explanations in the budget estimates, e.g. the requests "for the continuation of the operational programme in the field of economic development contemplated in General Assembly resolutions zoo (III) of 4 December 1948 and 304 (IV) of 16 November 1949.”

IT IS A CONSISTENT PRACTICE OF THE GENERAL ASSEMBLY TO INCLUDE IN THE ANNUAL BUDGET RESOLUTIONS, PROVISION FOR EXPENSES RELATING TO THE MAINTENANCE OF INTERNATIONAL PEACE AND SECURITY. The General Assembly had consistently included in the annual budget resolutions provision for "unforeseen and extraordinary expenses3" arising in relation to the "maintenance of peace and security". The annual resolution designed to provide for extraordinary expenses authorizes the Secretary-General to enter into commitments to meet such expenses with the prior concurrence of the Advisory Committee on Administrative and Budgetary Questions, except that such concurrence is not necessary if the Secretary-General certifies that such commitments relate to the subjects mentioned .and the amount does not exceed $2 million. Every year from 1947 through 1959 the resolutions on these unforeseen and extraordinary expenses have been adopted without a dissenting vote, except for 1952, 1953 and 1954, owing to the fact that in those years the resolution included the specification of a controversial item-United Nations Korean war decorations. Finally, in 1961, the report of the Working Group of Fifteen on the Examination of the Administrative and Budgetary Procedures of the United Nations had recorded the adoption without opposition of a statement that "investigations and observation operations undertaken by the Organization to prevent possible aggression should be financed as part of the regular budget of the United Nations." Taking these facts into consideration, the Court concluded that there was no justification for reading into the text of Article 17, paragraph 1, any limiting or qualifying word before the word "budget".

ARTICLE 17 PAR 2 The term "expenses of the Organization" means all the expenses and not just certain types of regular expenses. An examination of other

3 Note to Court by the Controller on the budgetary practices of the UN: "extraordinary

expenses" are "obligations and expenditures arising as a result of the approval by a council of new programmes not contemplated when the budget appropriations were approved".

parts of the Charter shows the variety of expenses which must inevitably be included within the "expenses of the Organization" just as much as the salaries of staff or the maintenance of buildings.

EXAMPLE The text of Chapters IX and X of the Charter with reference to international economic and social cooperation, especially the wording of those articles which specify the functions and powers of the Economic and Social Council, anticipated the numerous and varied circumstances under which expenses of the Organization could be incurred and which have indeed eventuated in practice.

IN ARTICLE 98 the Secretary-General is obligated to perform such functions as are entrusted to him by the General Assembly, the Security Council, the Economic and Social Council, and the Trusteeship Council. Whether or not expenses incurred in his discharge of this obligation become "expenses of the Organization" cannot depend on whether they be administrative or some other kind of expenses.

THE COURT DOES NOT PERCEIVE ANY BASIS FOR CHALLENGING THE LEGALITY OF THE SETTLED PRACTICE of including such expenses as these in the budgetary amounts which the General Assembly apportions among the Members in accordance with the authority which is given to it by Article 17, paragraph 2.

ISSUE: Whether in that broad context one finds any basis for implying a limitation upon the budgetary authority of the General Assembly which in turn might limit the meaning of "expenses" in paragraph 2 of that Article.

PURPOSE OF ARTICLE 17 are the vesting of control over the finances of the Organization, and the levying of apportioned amounts of the expenses of the Organization in order to enable it to carry out the functions of the Organization.

Article 17 is the only article in the Charter which refers to budgetary authority or to the power to apportion expenses, or otherwise to raise revenue.

ARGUMENT: EXPENSES RESULTING FROM OPERATIONS FOR THE MAINTENANCE OF INTERNATIONAL PEACE AND SECURITY WERE NOT "EXPENSES OF THE ORGANIZATION" WITHIN THE MEANING OF ARTICLE 17, PARAGRAPH 2, inasmuch as they fell to be dealt with exclusively by the Security Council, and more especially through agreements negotiated in accordance with Article 43 of the Charter.

The argument rests in part upon the view that when the maintenance of international peace and security is involved, it is only the Security Council which is authorized to decide on any action relative thereto. It is argued further that since the General Assembly's power is limited to discussing, considering, studying and recommending, it cannot impose an obligation to pay the expenses which result from the implementation of its recommendations. This argument leads to an examination of the respective functions of the General Assembly and of the Security Council under the Charter, particularly with respect to the maintenance of

Always will B

* bok * cj * tiff * gem * tin * 20international peace and security.

ARTICLE 24: "In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security ..."

RESPONSIBILITY IS "PRIMARY", NOT EXCLUSIVE It is only the Security Council which can require enforcement by coercive action against an aggressor. The Charter makes it abundantly clear, however, that the General Assembly is also to be concerned with international peace and security. Article 14 authorizes the General Assembly to "recommend measures for the peaceful adjustment of any situation, regardless of origin, which it deems likely to impair the general welfare or friendly relations among nations, including situations resulting from a violation of the provisions of the present Charter setting forth the purposes and principles of the United Nations".

While it is the Security Council which, exclusively, may order coercive action, the functions and powers conferred by the Charter on the General Assembly are not confined to discussion, consideration, the initiation of studies and the making of recommendations. Article 18 deals with "decisions" of the General Assembly "on important questions". These "decisions" may have dispositive force and effect. Among these latter decisions, Article 18 includes suspension of rjghts and privileges of membership, expulsion of Members, "and budgetary questions".

GA AND ITS POWER TO APPROVE THE BUDGET By Article 17, paragraph 1, the General Assembly is given the power not only to "consider" the budget of the Organization, but also to "approve" it. The decision to "approve" the budget has a close connection with paragraph 2 of Article 17, since thereunder the General Assembly is also given the power to apportion the expenses among the Members and the exercise of the power of apportionment creates the obligation, specifically stated in Article 17, paragraph 2, of each Member to bear that part of the expenses which is apportioned to it by the General Assembly. When those expenses include expenditures for the maintenance of peace and security, which are not otherwise provided for, it is the General Assembly which has the authority to apportion the latter amounts among the Members. The provisions of the Charter which distribute functions and powers to the Security Council and to the General Assembly give no support to the view that such distribution excludes from the powers of the General Assembly the power to provide for the financing of measures designed to maintain peace and security. ARGUMENT: THE MAINTENANCE OF INTERNATIONAL PEACE AND SECURITY THE BUDGETARY AUTHORITY OF THE GENERAL ASSEMBLY IS LIMITED BY ARTICLE 11, PARAGRAPH 2, under which "any such question [relating to the maintenance of international peace and security] on which action is necessary shall be referred to the Security Council by the General Assembly either before or after discussion."

The Court considers that the kind of action referred to in Article II, paragraph 2, is coercive or enforcement action. This paragraph, empowers the General Assembly,

by means of recommendations to States or to the Security Council, or to both, to organize peacekeeping operations, at the request, or with the consent, of the States concerned. This power of the General Assembly is a special power which in no way derogates from its general powers under Article IO question or Article 14, except as limited by the last sentence of Article II, paragraph 2. This last sentence says that when "action" is necessary the General Assembly shall refer the question to the Security Council. The word "action" must mean such action as was solely within the province of the Security Council, namely that indicated by the title of Chapter VII of the Charter: "action with respect to threats to the peace, breaches of the peace, and acts of aggression".

If the word "action" in Article II, paragraph 2, were interpreted to mean that the General Assembly could make recommendations only of a general character affecting peace and secunty in the abstract, and not in relation to specific cases, the paragraph would not have provided that the General Assembly may make recommendations on questions brought before it by States or by the Secunty Council. Accordingly, the last sentence of Article II, paragraph 2, has no application where the necessary action is not enforcement action. The Court accordingly finds that the argument which seeks, by reference to Article II, paragraph 2, to limit the budgetary authority of the General Assembly in respect of the maintenance of international peace and security, is unfounded.

ARGUMENT: ARTICLE 43 OF THE CHARTER CONSTITUTES A PARTICULAR RULE, A LEX SPECIALIS, WHICH DEROGATES FROM THE GENERAL RULE IN ARTICLE 17, whenever an expenditure for the maintenance of international peace and security is involved.

Article 43 provides that Members shall negotiate agreements with the Security Council on its initiative, stipulating what "armed forces, assistance and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security", the Member State will make available to the Security Council on its call. Such agreement or agreements shall govern the numbers and types of forces, their degree of readiness and general location, and the nature of the facilities and assistance to be provided.

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

ARTICLE 43 NOT APPLICABLE With reference to this argument, the Court stated that the operations known as UNEF and ONUC were not enforcement actions within the compass of Chapter VII of the Charter and that therefore Article 43 is not applicable. Assuming it were applicable, the Court could not accept such an interpretation of its text for the following reasons. A Member State would be entitled, during the negotiation of such agreements, to insist, and the Security Council would be entitled to agree, that some part of the expense should be borne by the Organization. In that case such expense would form part of the expenses

Always will B

* bok * cj * tiff * gem * tin * 21of the Organization and would fall to be apportioned by the General Assembly under Article 17. It is difficult to see how it could have been contemplated that all potential expenses could be envisaged in such agreements concluded perhaps long in advance. Indeed, the difficulty or impossibility of anticipating the entire financial impact of enforcement measures on Member States is brought out by the terms of Article 50 which provides that a State, whether a Member of the United Nations or not, "which finds itself confronted with special economic problems arising from the carrying out of those [preventive or enforcement] measures, shall have the right to consult the Security Council with regard to a solution of those problems". Presumably in such a case the Security Council might determine that the overburdened State was entitled to some financial assistance; such financial assistance, if afforded by the Organization, as it might be, would clearly constitute part of the "expenses of the Organization". The economic problems could not have been covered in advance by a negotiated agreement since they would be unknown until after the event and in the case of non- Member States, which are also included in Article 50, no agreement at all would have been negotiated under Article 43.

Furthermore, the Court considered that it could not be said that the Charter had left the Security Council impotent in the face of an emergency situation when agreements under Article 43 had not been concluded. It must lie within the power of the Security Council to police a situation even though it did not resort to enforcement action against a State. The costs of actions which the Security Council was authorized to take therefore constituted "expenses of the Organization within the meaning of Article 17, paragraph 2".

NOW THE COURT PROCEEDS TO EXAMINE THE EXPENDITURES ENUMERATED IN THE REQUEST FOR THE ADVISORY OPINION In determining whether the actual expenditures authorized constitute "expenses of the Organization within the meaning of Article 17, paragraph 2, of the Charter", the Court agrees that such expenditures must be tested by their relationship to the purposes of the United Nations in the sense that if an expenditure were made for a purpose which is not one of the purposes of the United Nations, it could not be considered an "expense of the Organization".

PURPOSE OF THE UN The first two purposes as stated in paragraphs I and 2, may be described as pointing to the goal of international peace and secunty and friendly relations. The third is the achievement of economic, social, cultural and humanitarian goals and respect for human rights. The fourth and last purpose is to be a center for harmonizing the actions of nations in the attainment of these common ends.

ACTS OF THE ORGANZATION These purposes are broad indeed, but neither they nor the powers conferred to effectuate them are unlimited. Save as they have entrusted the Organization with the attainment of these common ends, the Member States retain their freedom of action. But when the Organization takes action which warrants the assertion that it was appropriate for the fulfillment of one of the stated purposes of the United Nations, the presumption is that such action is not ultra vires the Organization. If it is agreed that the action in question

is within the scope of the functions of the Organization but it is alleged that it has been initiated or carried out in a manner not in conformity with the division of functions among the several organs which the Charter prescribes, one moves to the internal plane, to the internal structure of the Organization. If the action was taken by the wrong organ, it was irregular as a matter of that internal structure, but this would not necessarily mean that the expense incurred was not an expense of the Organization. Both national and international law contemplate cases in which the body corporate or politic may be bound, as to third parties, by an ultra vires act of an agent. As the United Nations Charter included no procedure for determining the validity of the acts of the organs of the United Nations, each organ must, in the first place at least, determine its own jurisdiction. If the Security Council adopted a resolution purportedly for the maintenance of international peace and security and if, in accordance with such resolution, the Secretary-General incurred financial obligations, those amounts must be presumed to constitute "expenses of the Organization".

The Financial Regulations and Rules of the United Nations, adopted by the General Assembly, provide: "Regulation 4.1: The appropriations voted by the General Assembly shall constitute an authorization to the Secretary- General to incur obligations and make payments for the purposes for which the appropriations were voted and up to the amounts so voted."

Thus, for example, when-the General Assembly in resolution 1619 (XV) included a paragraph reading : "3. Decides to appropriate an amount of $100 million for the operations of the United Nations in the Congo from I January to 31 October 1961", this constituted an authorization to the Secretary-General to incur certain obligations of the United Nations just as clearly as when in resolution 1590 (XV) the General Assembly used this language: "3. Authorizes the Secretary-General ... to incur commitments in 1961 for the United Nations operations in the Congo up to the total of $24 million.”

Recalling its Opinion concerning Effects of Awards of Compensation made by the United Nations Administrative Tribunal, the Court declared that obligations of the Organization might be incurred by the Secretary-General acting on the authority of the Security Council or of the General Assembly, and that the General Assembly "has no alternative but to honour these engagements".

The obligation is one thing: the way in which the obligation is met-that is from what source the funds are secured is another. The GA has several alternatives e.g. it may apportion the cost according to ordinary scale of assessment or utilize funds which are voluntarily contributed to the Organization, etc.

It does not matter whether the General Assembly chooses to have the item in question included under one of the standard established sections of the "regular" budget or whether it is separately listed in some special account or fund. The significant fact is that the item is an expense of the Organization and under Article 17, paragraph 2, the General Assembly therefore has authority to apportion it.

Always will B

* bok * cj * tiff * gem * tin * 22 The reasoning which has just been developed, applied to the resolutions mentioned in the request for the advisory opinion, might suffice as a basis for the opinion of the Court. The Court finds it appropriate, however, to take into consideration other arguments which have been advanced.

THE COURT WENT ON, HOWEVER, TO EXAMINE SEPARATELY THE EXPENDITURES RELATING TO THE UNEF AND ONUC In considering the operations in the Middle East, the Court must analyze the functions of UNEF as set forth in resolutions of the General Assembly. Resolution 998 (ES-1) of 4 November 1956 requested the Secretary-General to submit a plan "for the setting up, with the consent of the nations concerned, of an emergency international United Nations Force to secure and supervise the cessation of hostilities. The verb "secure" as applied to such matters as halting the movement of military forces and arms into the area and the conclusion of a cease-fire, might suggest measures of enforcement, were it not that the Force was to be set up "with the consent of the nations concerned".

GA RESOLUTION 1000 (ES-1) OF NOVEMBER 5: "Establishes a United Nations Command for an emergency international Force to secure and supervise the cessation of hostilities in accordance with al1 the terms of General Assembly resolution 997 (ES-1) of 2 November 1956." This resolution was adopted without a dissenting vote. In his second and final report on the plan for an emergency international Force of 6 November, the Secretary-General, in paragraphs 9 and IO, stated:

"While the General Assembly is enabled to establish the Force with the consent of those parties which contribute units to the Force, it could not request the Force to be stationed or operate on the territory of a given country without the consent of the Government of that country. This does not exclude the possibility that the Security Council could use such a Force within the wider margins provided under Chapter VI1 of the United Nations Charter. 1 would not for the present consider it necessary to elaborate this point further, since no use of the Force under Chapter VII, with the rights in relation to Member States that this would entail, has been envisaged.

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

Paragraph 12 of the Report is particularly important because in resolution 1001 (ES-1) the General Assembly, again without a dissenting vote, "Concurs in the definition of the functions of the Force as stated in paragraph 12 of the Secretary-General's report". Paragraph 12 reads in part as follows: "the functions of the United Nations Force would be, when a ceasefire is being established, to enter Egyptian territory with the consent of the Egyptian Government, in order to help

maintain quiet during and after the withdrawal of non-Egyptian troops, and to secure compliance with the resolution of November 1956…The Force would be more than an observers' corps, but in no way a military force temporarily controlling the territory in which it is stationed; nor, moreover, should the Force have military functions exceeding those necessary to secure peaceful conditions on the assumption that the parties to the conflict take all necessary steps for compliance with the recommendations of the General Assembly."

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

It could not therefore have been patent on the face of the resolution that the establishment of UNEF was in effect "enforcement action" under Chapter VI1 which, in accordance with the Charter, could be authorized only by the Security Council.

On the other hand, it is apparent that the operations were undertaken to fulfill a prime purpose of the United Nations, that is, to promote and to maintain a peaceful settlement of the situation.

This being true, the Secretary-General properly exercised the authority given him to incur financial obligations of the Organization and expenses resulting form such obligations must be considered "expenses of the Organization within the meaning of Article 17, paragraph 2".

PROBLEMS/ DEBATES OVER UNEF FINANCING It led to the view that the General Assembly never, either directly or indirectly, regarded the expenses of UNEF as "expenses of the Organization within the meaning of Article 17, paragraph 2, of the Charter". With this interpretation the Court cannot agree. In paragraph 15 of his second and final report on the plan for an emergency international Force of 6 November 1956, the Secretary-General said that this problem required further study. Provisionally, certain costs might be absorbed by a nation providing a unit, "while all other costs should be financed outside the normal budget of the United Nations". Since it was "obviously impossible to make any estimate of the costs without a knowledge of the size of the corps and the length of its assignment", the "only practical course ... would be for the General Assembly to vote a general authorization for the cost of the Force on the basis of general principles such as those here suggested".

Paragraph 5 of resolution 1001 (ES-1) of 7 November 1956 states that the General Assembly "Approves Provisionally the basic rule concerning the financing of the Force laid down in paragraph 15 of the Secretary-General's report".

In an oral statement to the plenary meeting of the General Assembly on 26 November 1956, the Secretary-General said: " ... I wish to make it equally clear that while funds received and payments made with respect to the Force are to be

Always will B

* bok * cj * tiff * gem * tin * 23considered as coming outside the regular budget of the Organization, the operation is essentially a United Nations responsibility, and the Special Account to be established must, therefore, be construed as coming lvithin the meaning of Article 17 of the Charter".

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

The next of the resolutions of the General Assembly to be considered is 1089 (XI) of 21 December 1956, which reflects the uncertainties and the conflicting views about financing UNEF. The divergencies are duly noted and there is ample reservation concerning possible future action, but operative paragraph I follows the recommendation of the Secretary-General "that the expenses relating to the Force should be apportioned in the same manner as the expenses of the Organization".

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

The report of this study committee again records differences of opinion but the draft resolution which it recommended authorized further expenditures and authorized the Secretary-General to advance funds from the Working Capital Fund and to borrow from other funds if necessary; it was adopted as resolution 1090 (XI) by the requisite two-thirds majority on 27 February 1957. In paragraph 4 of that resolution, the General Assembly decided that it would at its twelfth session "consider the basis for financing any costs of the Force in excess of $IO million

not covered by voluntary contributions".

Resolution 1x51 (XII) of 22 November 1957, while contemplating the receipt of more voluntary contributions, decided in paragraph 4 that the expenses authorized "çhall be borne by the Members of the United Nations in accordance with the scales of assessments adopted by the General Assembly for the financial years 1957 and 1958 respectively". Almost a year later, on 14 November 1958, in resolution 1263 (XIII) the General Assembly, while "Noting with satisfaction the effective way in which the Force continues to carry out its function", requested the Fifth Committee "to recommend such action as may be necessary to finance this continuing operation of the United Nations Emergency Force".

After further study, the provision contained in paragraph 4 of the resolution of 22 November 1957 was adopted in paragraph 4 of resolution 1337 (XIII) of 13 December 1958. Paragraph 5 of that resolution requested "the Secretary-General to consult with the Governments of Member States with respect to their views concerning the manner of financing the Force in the future, and to submit a report together with the replies to the General Assembly at its fourteenth session". Thereafter a new plan was worked out for the utilization of any voluntary contributions, but resolution 1441 (XIV) of 5 December 1959, in paragraph 2 : "Decides to assess the amount of $20 million against al1 Members of the United Nations on the basis of the regular scale of assessments" subject to the use of credits drawn from voluntary contributions. Resolution 1575 (XV) of 20 December 1960 is practically identical.

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

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

By paragraph 2 of the resolution of 14 July 1960 the Security Council "Decides to authorize the Secretary-General to take the necessary steps, in consultation with the Government of the Republic of the Congo, to provide the Government with such military assistance as may be necessary". The Secretary-General reported on which States he had asked to contribute forces or matériel, which ones had complied, the size of the units which had already arrived, and some detail about further units expected.

Always will B

* bok * cj * tiff * gem * tin * 24

On 9 August the Security Council adopted a resolution without a dissenting vote confirming the authority given to the Secretary- General by the Security Council resolutions of 14 July and 22 July 1960. This is further supported by operative paragraphs 5 and 6 by which all Member States were called upon "to afford mutual assistance" and the Secretary-General was requested "to implement this resolution and to report further to the Council as appropriate".

The Security Council resolutions of 14 July, 22 July and g August 1960 were noted by the GA in its resolution 1474 (ES-IV) of 20 September, adopted without a dissenting vote. Again without a dissenting vote, on 21 February 1961 the Security Council reaffirmed its three previous resolutions "and the General Assembly resolution 1474 (ES-IV) of 20 September 1960" and reminded "all States of their obligations under these resolutions".

On 24 November 1961 the Security Council, once more recalling the previous resolutions, reaffirmed "the policies and purposes of the United Nations with respect to the Congo as set out" in those resolutions.

In the light of such a record of reiterated consideration, confirmation, approval and ratification by the Security Council and by the General' Assembly of the actions of the Secretary-General in implementing the resolution of 14 July 1960, it is impossible to reach the conclusion that the operations in question usurped or impinged upon the prerogatives conferred by the Charter on the Security Council. These operations did not involve "preventive or enforcement measures" against any State under Charter VII and therefore did not constitute "action" as that term was used in Article 11. The financial obligations which the Secretary-General had incurred, in accordance with the clear and reiterated authority of both the Security Council and the General Assembly, constituted obligations of the Organization for which the General Assembly was entitled to make provision under the authority of Article 17, paragraph 2, of the Charter. In relation to ONUC, the first action concerning the financing of the operation was taken by the General Assembly on 20 December 1960, after the Security Council had adopted its resolutions of 14 July, 22 July and 9 August, and the General Assembly had adopted its supporting resolution of 20 September. This resolution 1583 (XV) of 20 December referred to the report of the Secretary- General on the estimated cost of the Congo operations from 14 July to 31 December 1960, and to the recommendations of the Advisory Committee on Administrative and Budgetary Questions. It decided to establish an ad hoc account for the expenses of the United Nations in the Congo. It made this decision because in the preamble it had already recognized : "that the expenses involved in the United Nations operations in the Congo for 1960 constitute 'expenses of the Organization' within the meaning of Article 17, paragraph 2, of the Charter…"

Importance has been attached to the statement included in the preamble of General Assembly resolution 1619 (XV) of 21 April1961 which reads : "Bearing in mind that the extraordinary expenses for the United Nations operations in the Congo, are essentially different in nature from the expenses of

the Organization under the regular budget and that therefore a procedure different from that applied in the case of the regular budget is required for meeting these extraordinary expenses."

However, the same resolution in operative paragraph 4: "Decides further to apportion as expenses of the Organization the amount of $100 million among the Member States in accordance with the scale of assessment for the regular budget subject to the provisions of paragraph 8 below [paragraph 8 makes certain adjustments for Member States assessed at the lowest rates or who receive certain designated technical assistance], pending the establishment of a different scale of assessment to defray the extraordinary expenses of the Organization resulting from these operations."

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

CONCLUSION SA CONGO EXPENSES The General Assembly has twice decided that even though certain expenses are "extraordinary" and "essentially different" from those under the "regular budget", they are none the less "expenses of the Organization" to be apportioned in accordance with the power granted to the General Assembly by Article 17, paragraph 2. This conclusion is strengthened by the concluding clause of paragraph 4 of the two resolutions just cited which states that the decision therein to use the scale of assessment already adopted for the regular budget is made "pending the establishment of a different scale of assessment to defray the extraordinary expenses". The only alternative-and that means the "different procedure"-contemplated was another scale of assessment and not some method other than assessment. "Apportionment" and "assessment" are terms which relate only to the General Assembly's authority under Article 17.

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

For these reasons, by nine votes to five, that the expenditures authorized in General Assembly resolutions relating to the United Nations operations in the

Always will B

* bok * cj * tiff * gem * tin * 25Congo the operations of the United Nations Emergency Force constitute "expenses of the Organization" within the meaning of Article 17, paragraph 2, of the Charter of the United Nations.

Always will B