Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter) - Advisory Opinion

CommuniqueNo. 62/20
(unoff icial)

The f ollowinginformtion from the Registsy of the ~nternatianal
Comt 'of Justice is communicated ta the Press:

On 20 July 1962 the International Court of JustiCe delivered an .
sdvisory opinion on the question of certainexpsn5-es qf 'the United
Mations (~rticle17, paragraph 2, 'of the ~harter),'whi;b hhd been put
to it in accordance with a resolution adopted by the G~neral Assembly
on 20 December 1961.

By nine votes to £ive the Coi~rt declaredthat the expenditmes
authorized in certain General Assemblyrcsolutionsenumeratedin the
requestfor opinion, relating to the United FTations operations in the
Cqngo and in the Middle East undertaken in pursuance of Security

Council and General Assemblgresolutions likewise enumeratedin the
request, were "expensesof the Organization"withinthe rneanîng of
Article 17, paragraph 2, of the Charter of the United Nations.

Judges Sir Pescy Spender, Sir GeraldFitzniaurice and Morelli
appended to the Opinionof the Court çtatements of their Separate
Opinions. President Winiarski and Judges Basdevant,Moreno Quintana,
Koretslyr and Bustamante y Rivero appendcd to th^ Opinionof the Court
statementsof their Dissenting Opinions.

The President of the Court, in pursuance of Article 46, paragraph 2,
of the Statute, having considered that the States idembers of the United
Nations were likely to be able to furnish informationon the question,
fixed 20 February 1962 as the time-limit viithin mhich the Court vrould
be prepared to receive written statemcnts from thcm. The following

nilembers of the United Nations submittcdatatements, notes or letter3
setting forth their views : Bus tralia, Bulgaria, Byelorussian Soviet
+ SocialistRepbblic, Canada, Czechoslovnkia, Denrnark, France, Ireland,
Italy , Jnpan, thc Ne ther Lands, For tug7.1, Rornzni,, South Africa, 'Spain,
' ukralnim Soviet Socialist Republi'c, Union of Soviet Socialist
RepubEics, United Kingdom of GreatBritain and Northern Ireland,
United States af America, and Uppcr Volta. At l-iearings held From
14,to 21 May, the Court he~rd oral stqtementsby the representatives
of Grnada, the Netherlands,Italy, the United Kingdom of Great Britain

aizdNorthern Ireland,Norway, Australia, Ireland, the Union of Soviet
Socinlist gepublicsand the United States of America. ,;

In its opinion the Courtfirst recalled'thatit had been argued
that the Court should refuse to give an opinion, She questionput to
it being of a political nature, and declaredthat it cauld not
attribute a political character to a requ&st which invited it to

wldertake an essentially judicial task, namely the interpretation of a

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treatyprovision, In this connection the Court recnlled the
principles previoualy stated by the Permanent Court of International
Justice in the Advisory Opinionconcerningthe Status of Eastern
Carelie and by the pressntGourtain the Advisory Opinionsconcerning
tho Interpretation of Peace Tseatiea with Bulgeria, Hungarg and
Romnia (~ir s .~has e) and Judgmcnts of the Adniinis tra tive Tribun21 of

the ILO upon Cornplaints mde against Unesco, and found no ~llcompelling
reasonI7 why. it should not give the advisoryopiniqn rvhich the General
Assenbly had requestedof it.
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The COI& then exsrnined the viev tht it 'should talce into
considerntio nhe rejectionof a French amendment.to the request for
advisory opinion. Thh amendment rvould have nakcd the Court to give '
m opinion on the questionmhether the expcndituresrelated to the
indicated operations had bsen lli!ecided on in conforni ty with the

provisions of the Charterf1. 10.

On this point the Court obsemed that the rejection of the French
mcndment did not çonstitutea directive to the Court to exclude f~om
its coiislderation the question whcther certainexpendi turrsnere
"decidcd on in confosmity with the Charteri7, if the Court found such
considerntio appropriate, Nor could the Court agree that the
rcjection of the French amendment had any bearing upon the question
ri~hether the Genesal Assemblyhad sought to preclude the Courtfrom

interpreting Article 17 in the light of other articlesof the Charter,
thst ia, in thd whole context of the treaty.

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Tuxning then to the puestion vrhich had been posed, the court f od

that it involvedan interpretation of Article 17, paragraph 2, of the
Charter,and that the first question waa .tht of identifying what are
Ilthe ex-enses of the.Organizationtl. . .
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The text of Article 17, paragrephY2, reforred to "the expenses~'of
the Organization" mithautany fwther explicit definition. The
inierpretation of the mord i'cxpenaesll had b een linked'vrith the ~ord
tlbudgetu In paragraph 1 of that Article and it had been contendedthnt
in both cases the quelifying adjective l~regularl1 or 'bsdninistrativell

should be undcrstood to be implied. Accordingto the Court this would
be possibleonly If such qualification must necessarilybe inaplied
from the provisions of the Charter considered as s vhole.

Concerning the mord Ifbudget" in psragraph 1 of Article 17, the
Court found that the distinction bcbeen 'Isdministrative budgets"
and llopera.Cioml budgetoll had not been absent £rom the' minds of the
drcaftcrs of the Charter since it wna provided in pciragraph 3 of the
spmeArticle that the Gonernl, Lsseinbly Ishc21exmine the ndminia trative

budgets1' of the specizlized ngencies: :if the .rn4 ters .Md . in.en.ed'

m - . Lhat ..,, thnt pzzogszph 1 should be lirnited to the ndmini~tr~tive budget of

the United Nntions, orgnnization i tseli', the ~osd "adminis trntivebl
nou1.d hlvo been inserted in pnrngrnph 1 as it hod been in pnragraph 3,
hctu~lly, the prnctice of the Org~.niz:ltion h,?d besn from the outset
to include in the budget iterns,nhich mould not fdl mithin nny of the
def initions of lladmiriitrn tivct 'budget" which hnd bcen cidvonced. The
Gennrnl ~':sseably hd cansistently includcd in the nnnunl budget
rcsolutions provision for "unf ores een 2nd extr-ordincwry expenseçl'
arisingin rclltian to the "m-iintenance of peccc 2nd security". krery

ye:m £rom 1947 through 1959 th^ resolutions on thcse unforeseen 2,nd
cxtrnordinary expenses l-ixve been ndopted -trthout a dissentingvote,
execpt fer 1952, 1953 und 1954? owing ta the fnçt th?-t in those yens
the sesolution included the specificntion of 2 contrcversinl item -
United NationsKorennmar decorntions. Pinnlly, in 1961, the report
af the Plorking Group of Fifteenon the Exnminntionof the Administrative
Budgetnry Procedures of the United'Nntions had recorded the
adoptionwithout opposition of a statement that lrinvestigations md

observation opercitions undertaken by the Orgnnizntion to prevent
possible aggression should be financed zs part of the regulnr budget
uf the Unitcd Nntians." Taking tl-iese fc.cts into considerLy.tion,
the Court concludcd that therc tvrisno justification fox reciding into
the textof Article 17, parngrnph 1, any limitingor qualifying mo~d
beforc -the nard "budget"'.

Turning to pnragraph 2 of ilrticlo 17, the Court observed that, on
'its fnco, the texm "expenses of the Organizetion" memt al1 the
expenses md not jus* certnin types of expenscs which might b~ referred
to as "regular exper~es'~, Finding thnt rin cxaminntionof other parts

of the Charter shoned the vnriety of expcnseswhich must inevitably
be included mitbin the "expensesof the Orgnnization", the Court did
not perceive ~my basis for chfillcriging the Icgclity of the settled
practiceof including such expenses in the budgetaxy arnounts which the
Genexal Assembly apportioncd nmong the luismb~rsjin accordance with the
authority which 'iir3sgiv~n to it by iirticle 17, parzgrc,ph 2.

Pnssing thcn to the considerslion of Article 17 from the standpoint
of its place in the general structure and scherne of the Charter,the
Court found that the genernl purposes of that Articlewere the vesting
of controlover the finances of the Organization d the levying of
apiortioned arnounts af the expensesof the Orgenixation. Replying to

the argumentth.t exponsesresulting from operations for the maintenance
of international peace and security xcrc not "expensesof the
Organiza$ion1l within the rneming of Article 17, paragrnph 2, of the
Charter,inasmuchas thcy fell to be deczlt with exclusively by th@
~,ecu;?tg Council,and more especially Ghrough sgreements nego tia ted in After stating thatArticle 41 nas not applicable, ths Court added
tliat even if it t-rer'e anplicable, th^ Court could not nccept such an

iiltfrprst,?tion of its text for the following rwsans, A lfember Stnte
mould be entktled, during the negotiation of such agreements, to
insist, and the Seçu.rity CounciL 7,-ïould becntitled to agree, that
some jmrt of the cxpense should be borne by the Organization. In that
' cas c s ucb expense xould f orm part of the exgensesof thc Organisation
and vould fn211 to be apportioiied by the Gencrzl Assembly under A
Article 17, Moreover, it foll~ned from drticle 50 of the Charter that

the SecurityCouncil rright de terninethzt an overburdened State v~as
entitlcd to seme financialassistance, Such financialassistance, if
afforded by the Orgmization, as it might bc, nould clenrly constitute
part of the "expenses of the Orgnnization1\ Fur+hermore, the Court
consider~d that it could not be snid that the Charter had left the
Secu~it> Council inpoten+, in the fact of in emergeiicy situation when
agreements under Article 43 had not been concluded. It must Lie

withinthe powr of' the Security Gouncil to police a situztion even
though it did not resort to onforcenentaction ogainst a State, Tho
costs of zctions which the SecurityCouncil wns authorized to take
,thorcf ore cons ti tuted llexpens cs .of thc Orgcanization within the meaning
of firticlc 17, pz~ragraph 2".

Having considered the gencral problem of tha interpretation of
Articl-e 17, snragraph 2, in thb light of thc general structureof the
Cl~arter and of the r~spective fwnctions of the General bsscnbly and
thc Securi ty Council, with a view te dotermining the neaning of the

phrase "the cxpns es of thc Organiaationfl, thc Court proçeeded to
examine the expeiidituros onumcra ted in the rcquest for thc advisory
opinion, It agreed that such expendituresmust be test~d bg their
relatioi~sl~i$ to, the purposesof the UnitcdFations in tho aanse tliat
if an expcnditurc were inade fox a purpose nhiçh mas not one of the
PUTpQScs of the UnitedNations, it could not be considered an "expense
of tlzc Urganization " Whcn the Organization took nction :'{hich warranted

the assertion thst it ;:as appropria te for thc i'ulfilmcnt of one of the
purposcsof the UnitedNations set forth in Iirticle 1 of the Charter,
the prcsumption mas that çuch nctioii xas not ultra vires the
Organization. If the action viere tnken by the vrong osgant it was
irregular , but this -p:ould no5 necesssril-y mom th3 t the' expense
incurred vas not an expcnse of the Orgnnizntion. 30th nctional and
internationa law contemplated cases in rihich th^ body corporate or
politic night be bound by m ultra vires act of an agent. As the

UnitedMations Charter includedno procedurc for determining th&
vzlidity of the ricts of tlis organs of the Lhited I\TnZiions, each organ
must, in the fixst place zt least, detornineits own jusisdiction,
If the Security Council ndopted e sesolution purportedly for thc
maintanance of intcrmtionnl geace and secbrity and if, in accordance
nith suc11 scsolution, the Sccrctnry-Gcneral incurred financial
obligntions, those afi~ounts must be presumed to constitute "expenses

of the UrganizationIi . Bccalllng fts Ophion concesning Eff ects of
-~a-*-- of Compensation made bg the Unitcd Tqations Bdminis trs tive Tribunal,

the .... the Court declared tho t obligations of the Orgnnization rnight 5e

incuryed by tho Secretary-Gsneral acting on the sutliority of the
Sec'mity Council or of th? Gener~l .\ssembly ,nd that the Gencrel
bsscmbly "has no altern~tive but to honour these Ongsgements".

This rcasoning, FippLi~d to the rcsolutions mcntionêdin the request
for the advisoryopinion, might suffice as 2 basis fur the opinion of '
the Court. The Court nent on, ho~~cvcr, LQ examineseparntelythe

expcnditures relating to the United Nations EmergencyForce in the
IJiddlc East (U~TFD )nd those relztingto the United Nati~ns operations
in thc Congo (OPTUC .)

ds regards UNEF, thc Court recnlled thi~t it l#as ta be set up with
thc consent of the concerned, nhich dismissod the notion that ,
it constituted rneasures of enforccnent. On thc other hand, it vins

apparent that tbz UNEF op~rationsserc undertaken to fulfil a prime
pmJ?ose of the Uiiitud Nations, that is, to promote and maintaina
peaceful scttloment of the situation, The Secretary-General had
thercforc properly exercised the authority given him to incur
financial obligations; the expcnses psovid~d for by such obligations
muat bc considercd "expenses ni' ths Organizntiontl. Replying to the
ztrgwnent .tLi.tthe Gcnernl !!ssembly never, either direct1 y or indirec tly,

ragarded the expenses of UiWF as "expenses of the Orgnnizationnithin
the meanlng of Article 17, paragrnph 2? of the CharterH,the Court
statcd that it c,ould not rgres nith this interprct-ition. Gnalyzing
the resolutions relating to the finfa,ncing of UNEF, the Court Pound that
the est~blishmcnt of a spcciql account did not ncccssnrilymean thnt
the funds in iL YJEPC not to be derived from contributions cf Members
as apportionedby the Gensral ds~~inbly. The rcsolutiona on this

mattop, vhich had been ndo-ted hy the r~quisito%no-thirdsmnjority,
üiust have rested unon the c:-nclusLon tliat the expensesof TMEF were
ITexpenses of the 0rgnniz.?tionH since otherwise the Genernl LssembLy
woulfi hnvc hzd no cuthosity to de~idc thlt thcy tlslinllbo borne by the
United Nationsf1 os to apportion theni anclng the Members , The Court
found t;hcr:,f ore th~t, frrsllgear .to year, the exyensesof U$EP had been
tr~ntcd by the Eeneral LssembPy as oxpenses of the Organization within

the me?.ning of Article17, pnragraph 2,

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Turning noxt to the operationsin the Conso, the Court rscalled
that tbey hnd been initially nuthorized b3- the Security Comcil in the

resolution of 14 July 1960, ~juhich hnd been adopted without a'dissenting
YO~C. The r~solution,in the light of tho appecl from the Government
of the Congo, the r~port of the Secrotnry-Genural ~nd the debste in the
Security CounciL, hnd cleaxly been ndoptcd -dth a viem to maintnining
international peace and security. Reviewing the resolutions 2nd
rej;orts af the Sccretary-Genera1. relating to these operrltions, the
Court found th% in the light of such a recordof reiterated

considera tion, conf irr~?tiun, approvnl. and rn tifica %ion by the Security
Council nnà by thc! Gencrnl lissembly oî the actions of the Secretaxy-
. .G~neral, it wa3 in~passiblc to rsnch the conclusionthnt the operations in thc Congo ueurpod or inpingedupon th* prerogatives conferred by
tl1eCh.?;rter an Gli~ Secuxitg Council. These oper? tions did not involve
''prcvciz.tivoor enfrircemcnt n easures" agp.inst nny S tste under Chspter VI1

and t:z~reforc did not conskitute 'lactioi?l' as thpt tkrm iTssused in
Article 11. Tl12 financinl obligatioizs rrkiichthc Secretary-General had
iilclirrcd,in accordoncc vith the c7enr 2nd seïterated ,zuthoritg of bath
tho Sccurity Council and the Ganaral Assambly, constituted obligations
of the Organization for ~hlch thc General dssembly vras ontitled to m-r.ke
nrovision md~r the authoritg of Article 17, paragr~~ph 2, of the
Ghr.t;er,

In re1:ition to the finnncing of the oporations in thc Congo, the
Court, reczlling thc General Assenblyresolutionsconternplsting the
2.pportioment of the expenses in accordancc ?::it the scale of assessrnent
for the rcgular budget, concluded therefrom that the Gsneral Lssembly
had twice decbded thnt ?sron tho~gh certain expensesaere "extraordinsryl'
and "esscntially diff erent If from thoçe undcx the 'tregular budget", they
vcrc none the less ''expensc sf th^ Orgnnizntion" to be npportioned in

m accordancevith the pover granted to the General dssemplyby Article 17,
par2graph 2.

Havingthus pointed out on thc ons h;ind th-.+ the tex% of Article 17,
paragrnph 2, of the Gli?.rter could lend to thc conclusion that the
expenses of the Organization nere the amouiits psid out to defrny the
costs cf carryingout thc purposes of tho Orgnnization,and on the
o-bhe~ hxrd thnt the examina tion of the rcso1uf;ions authorizing the

oxpenditures referrcd to in thc request for thr adsiisory opinion had
Icd to ille f inding that they hnd boen incirirred with tln'riatd in view;
and havins alno nnalyzed and round unfound~d the ax~umants vhich l-iad
bcen cdvzïiced againstth,-conclusioi~ t31ci-the t.xqicn-5iturea in question
shou.ld bc coilsidered as expensesof th2 Urgctnization ~~ithin the neaning
of drticle 17, psragsaph 2, of th$ Chartsr of thc United Nations, the
Court nrrived nt thc conclusion that the questioxi subniitted to Tt by
the Gcncrnl Jssemblymust be nnsnered in the nffirmtivc.

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The Xague, 20 July 1962.