1. “Four principal contentions can be discerned: an affirmative contention, another contention apparently affirmative but subject to certain definite conditions, a negative contention, and lastly, the contention according to which it is not possible for the Court to pronounce on the question”.—The first “takes the view that the expenses involved in the operations … are normal expenses (of the Organization) ‥, (that) they are to be borne by all the Member States and should be apportioned among them … according to the scale of assessment laid down for (the administrative) budget”. The second “makes its effectiveness dependent on the fulfilment of certain conditions …; it attributes a voluntary character to the contributions ‥, and subordinates them to the capacity of the Governments concerned to pay or to the authorization required by their constitutional processes”. The third “derives its main strength from prescriptions concerning the distribution of functions … It is on those Member States whose action brought about the establisment of a military force that the obligation to contribute to financing it falls.” The fourth holds that “the question put to the Court … was put in an equivocal way” and that “the circumstances in which the Court is being consulted are not such as to make it possible to obtain the legal opinion which is expected of it.”

2. Status of Eastern Carelia (1923) (P.C.I.J., Series B, No. 5, p. 29)Google Scholar; Interpretation of Peace Treaties with Bulgaria, Hungary and Roumania, first phase (I.C.J. Reports 1950, p. 72)Google Scholar; Judgments of the Administrative Tribunal of the I.L.O. upon complaints made against the UNESCO (I.C.J. Reports 1956, p. 86)Google Scholar; Conditions of Admission of a State to Membership in the United Nations (I.C.J. Reports 1947–1948, p. 61).Google Scholar

3. The Court has repeatedly in the past felt compelled to reword questions put to it in a request for an advisory opinion, in order to be able to answer them in a reasonable fashion. The (General) Assembly often proves incapable of formulating its requests correctly.

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

5. Resolution 1731 (XVI): “The General Assembly,—Recognizing its need for authoritative legal guidance as to obligations of Member States under the Charter of the United Nations in the matter of financing the United Nations operations in the Congo and in the Middle East…”

6. Article 5: “A Member of the United Nations against which preventive or enforcement action has been taken by the Security Council may be suspended from the exercise of the rights and privileges of membership by the General Assembly upon the recommendation of the Security Council…”—Article 6: “A Member of the United Nations which has persistently violated the Principles contained in the present Charter may be expelled from the Organization by the General Assembly upon the recommendation of the Security Council”.

7. Judge Fitzmaurice, in particular, opposes this proposition: an obligation to contribute to the expenses of the Organization exists independently of any positive provision (see below).

8. “1. Any Member of the United Nations may bring any dispute, or any situation of the nature referred to in Article 14, to the attention of the Security Council or of the General Assembly … 3. The proceedings of the General Assembly in respect of matters brought to its attention under this Article will be subject to the provisions of Articles 11 and 12.”

9. I can only quote here a few sentences. After having stated the “cardinal rule of interpretation” according to which words are to be read in their ordinary and natural sense, and that only if they are ambiguous or lead to an unreasonable result, must the Court seek to ascertain what the parties really meant when they used them, and having remarked, with regard to the former part of that rule, that “ambiguity may lie hidden in the plainest and most simple of words” and, with regard to the latter part, that “the intention of the parties at the time when they entered into an engagement will noi always … have the same importance”, Sir Percy stresses that in the case of such multilateral treaties as the Charter, where the parties are not fixed and constant, and where from its inception it was contemplated that other States would be admitted to membership, the intentions of the framers of the instrument concerned appear less important. “(The) provisions (of the Charter) were of necessity expressed in broad and general terms. It attempts to provide against the unknown, the unforeseen and, indeed, the unforeseeable … It was intended to apply to varying conditions in a changing and evolving world community and to a multiplicity of unpredictable situations and events. Its provisions were intended to adjust themselves to the ever changing pattern of international existence … The stated purposes of the Charter should be the prime consideration in interpreting its text. Despite current tendencies to the contrary the first task of the Court is to look, not at the travaux préparatoires or the practice which hitherto has been followed within the Organization, but at the terms of the Charter itself.….The purpose pervading the whole of the Charter and dominating it is that of maintaining international peace and security … Interpretation of the Charter should be directed to giving effect to that purpose, not to frustrate it. … The wisest of (the framers of the Charter) could never have anticipated the tremendous changes which politically, militarily, and otherwise have occurred in the comparatively few years which have elapsed since 1945. … No comparable human instrument in 1945 or today could provide against all the contingencies that the future should hold. All that the framers of the Charter reasonably could do was to set forth the purposes the Organization set up should seek to achieve, establish the organs to accomplish these purposes and confer upon these organs powers in general terms. Yet these general terms, unfettered by man's incapacity to foretell the future, may be sufficient to meet the thrusts of a changing world. The nature of the authority granted by the Charter to each of its organs does not change with time. The ambit or scope of the authority conferred may nonetheless comprehend ever changing circumstances and conditions and embrace, as history unfolds itself, new problems and situations which were not and could not have been envisaged when the Charter came into being. The Charter must accordingly be interpreted, whilst in no way deforming or dislocating its language, so that the authority conferred upon the Organization and its various organs may attach itself to new and unanticipated situations and events.”

10. Quotation from the Injuries to United Nations Servants case (I.C.J. Reports 1949, at p. 182).Google Scholar

11. The British Judge would have preferred the provision to read as follows: “The expenses of the Organization shall be borne by the Members, and shall be borne by them as apportioned by the General Assembly.”

12. As is well known, Article 27 (3) prescribes that “Decisions of the Security Council on all matters shall be made by an affirmative vote of seven members including the concurring votes of the permanent members …”, without even mentioning such a thing as a “right of veto”. In direct contradiction to this text, an affirmative vote of all the permanent members is in actual Security Council practice not necessary to make a resolution of that body valid: an abstention by one or more of the permanent members is no obstacle to the validity of such a resolution. Judge Bustamante calls this (p. 291 ) “an unwritten amendment to the Charter” to the effect that “the abstention of a permanent Member present at a meeting is not assimilated to the exercise of the right to veto”. A peculiar type of “amendment”, if the proposition with which he follows up his first pronouncement is true, namely, that “no doubt this type of amendment may be legally repudiated in a given case by invoking the text of Article 27 (3).”