NOTES
A Legal Analysis of Article 19 of
the United Nations Charter
Joel I. Bell *
Gentlemen all, –
My credit now stands on such slippery ground
alac, what shall I say?
Shakespeare; Julius Caesar III, 1.
The future of collective security activities of the United Nations
depends largely upon the interpretation to be placed upon Article
19 of its Charter. The solution to this question will affect not only
the location of decision-making within the UN, but also the effec-
tiveness of the UN in its response to the needs of world peace in
face of desperate situations despite opposition by one or more of
the great nations. It is, therefore, not entirely inappropriate that
a political solution be found to the current confrontation. Nonethe-
less, a disregard for the legal issues, or a solution which flies in
the face of the meaning of the Charter, will deal a serious blow to
the prestige and development of international law. It is the object
of this note to apply the traditional tools of legal analysis to the
relevant sections of the Charter, making possible an assessment of
the conformity or lack of it achieved by the solution eventually
arrived at.
“A Member of the United Nations which is in arrears in the payment of its
financial contributions to the Organization shall have no vote in the General
Assembly if the amount of its arrears equals or exceeds the amount of tile
contributions due from it for the preceding two full years. The General
Assembly may, nevertheless, permit such a Member to vote if it is satisfied
that the failure to pay is due to conditions beyond the control of the
Member.” I
The contentions of the Soviet Union as to the meaning of the
article may be summarized as follows:
I. The application of the first sentence of Article 19 whereby
a Member in arrears loses its vote in the General Assembly is not
Of the Senior Board of Editors, McGill Law Journal; third year law student.
‘Article 19, UN Charter.
No. 2] ANALYSIS OF ARTICLE 19 OF U.N. CHARTER
149
mandatory and automatic but requires a decision by the General
Assembly;
II. Such a decision is to be taken by a two-thirds majority of
the Members present and voting under the terms of Article 18, para-
graph 2, which provides for such a majority for “the suspension
of the rights and privileges of membership.” A modification of this
contention is that even if the provision is mandatory and automatic,
the Assembly must first find as a fact that the Member is in
arrears in terms of Article 19
(by a two-thirds vote, being an
“important question”).
–
III. Arrears on the payment of assessments for ONUC 2 and
UNEF 3 if not peace-keeping expenses in general, are not to be in-
cluded in the computation of arrears for the purposes of Article 19.
All of these grounds of dispute direct the inquiry to the Charter
itself for a solution.
I. Article 19 – Mandatory or Permissive ?
It is beyond dispute that the second sentence of Article 19 is
permissive –
the General Assembly “may… permit” a Member
in arrears to vote “if it is satisfied that the failure to pay is due
to conditions beyond the control of the Member”. This language is
in clear contrast to that of the first sentence of Article 19 whereby
a Member in arrears “shall have no vote in the General Assembly” 4
Additional evidence of the intent of Article 19 can be derived from
the use of similar terms elsewhere in the Charter to provide a man-
datory effect (e.g. Article 20 provides that the General Assembly
“shall” meet in a regular annual session) and the same contrasting
language to provide a permissive effect (e.g. Article 22 says that the
General Assembly “may” establish such subsidiary organs as it deems
2 ONUC is a French acronym for the United Nations Operation in the Congo.
This undertaking began when in 1960 the newly independent government of the
Corgo (Leopoldville) appealed to the UN following local hostilities and Belgian
intervention to “protect the national territory against acts of aggression com-
mitted by Belgian metropolitan troops”. The Security Council agreed to provide
“such military assistance as may be necessary”. (see SCOR 15th Yr., Suppl. for
July, August, and September 1960 – S/4382 and S/4387).
– UNEF refers to the United Nations Emergency Force established as the first
major peace-keeping operation by the UN to “secure and supervise the cessation
of hostilities”. (see General Assembly Resolution 998 (ES-1), 4 Nov. 1956).
1 The French text tells us that a member in arrears “ne peut participer au vote
a l’A semblk Gen~rale…”. while the Spanish provides that such a member
“t tiendra koto-. The Chinese and Russian texts are reported to give similar
v, rding in th,.ir literal interpretations.
McGILL LAW JOURNAL
[Vol. 11.
necessary). Similarly, Article 5 provides that a Member “may be sus-
pended from the exercise of the rights and privileges of member-
ship by the General Assembly upon the recommendation of the
Security Council” (and that they “may be restored by the Security
Council”) in the event that preventive or enforcement action is
taken by the Security Council against a Member.
Furthermore, all Member.- normally have the right to vote.,
There would be no need for the General Assembly to be accorded
the optional authority that it “may… permit” a Member in arrears
to vote unless such voting rights had already been suspended. The
General Assembly need not “permit” anything to which a Member
is entitled by the Charter itself.
A greater certainty might be achieved by reference to the re-
cords of the founding conference at San Francisco.
“The Assembly will be a body on which every member of the United Nations
is represented and in which every member has one vote. A member which
has fallen two years in arrears on its financial obligations to the Organiza-
tion, however, will not be allowed to vote except by special decision of the
Assembly. On important questions a two-thirds majority will be required,
but otherwise, decision will be made by a majority vote.”
“The Assembly will have the right, upon a recommendation of the Security
Council, to admit new members, to suspend the rights and privileges of mem-
bers against which preventive or enforcement action is taken by the Security
Council, and to expel members…” 6
This indicates the mandatory effect intended by the founders
of the provision of what was to become Article 19, and the excep-
tion to which a “special decision of the Assembly” may give effect.
In explaining the substance of what became Article 5, the Rappor-
teur notes that “The Assembly will have the right”7 i.e. a discre-
tionary authority, to deny a member the rights and privileges of
membership, a provision of more severe proportions than that of
Article 19 which refers only to the vote in the General Assembly.
The source of Article 19 lies primarily in amendments proposed
at the San Francisco Conference by the delegations of India, the
Netherlands, and Australia.8 Committee 11/1 reported: “that states
failing to fulfill their financial obligations should be deprived of
5 Article 18, paragraph 1 –
“Each member of the General Assembly shall have
one vote.”
6 UNCIO – vol. 8, pp. 265-266. Revised Report of the Rapporteur (Judge Alfaro
of Panama) Commission 11, adopted by the Plenary Session of the San Francisco
Conference.
7 Ibid.
8 Ibid., pp. 508-509.
No. 2j ANALYSIS OF ARTICLE 19 OF U.N. CHARTER
151
iall voting rights in the Assembly as long as they are in arrears.
In its discussion of this matter, the experience of the League of
Nations was cited as indicating the need for such a penalty… It
also recommends that the General Assembly should be empowered
to waive this penalty if the default of the member is due to causes
beyond its control.” The consequent provision was:
“Each member of the Organization shall have one vote in the General As-
sembly. A member which is in arrears in the payment of its financial con-
tributions to the Organization shall have no vote so long as its arrears
amount to its contributions for two full years. The General Assembly may
waive the penalty if it is satisfied that the reasons for delay in payment
are beyond the control of the state in question.’ 0
The Plenary Session ultimately adopted unanimously the inter-
pretation noted by the Rapporteur above.”
Past experience with Article 19 is very slight since most mem-
bers have paid their assessments, or being in arrears, have paid
enough to avoid the Article’s application.’ 2 Haiti remained in ar-
rears at the opening of the Fourth Special Session of the General
Assembly on May 14, 1963. Before the issue came to a head, ade-
quate payment was made to exclude the application of Article 19.
Such payment was made before its delegation appeared at any meet-
ing of the Assembly’s Plenary Session or any meeting of the ,single
Main Committee then sitting, the Fifth Committee.
Mr. Zafrulla Kahn, the then President of the General Assembly,
made it clear in public interviews that he believed the provisions
of Article 19 to be of automatic application, subject to a discre-
tionary power of the General Assembly to suspend its operation
if it felt the default to be no fault of the particular country. On
only one other occasion did the issue come to the fore –
that was
in August 1958 when the Committee on Contributions reported to
the Thirteenth Session that Bolivia had not paid part of its contribu-
tions for 1955, as well as its total contribution for 1956, 1957 and
9Ibid., p. 453.
10 Ibid., p. 457. The Secretariat of the Conference advised a replacement of the
phrase “waive the penalty” by the words: “restore the privilege of voting”. The
Coordination Committee which was confined to questions of language, clarifica-
tion and organization, excluding substantive changes, drafted the text substantially
as it appears today.
“1 Adopted by the Conference’s 9th Plenary Session (UNCIO, vol. 1, p. 623).
12 There were ten Members in arrears prior to the Fourth Special Session of
the General Assembly in 1963, nine made sufficient payment before the session
opened. Among these were Hungary and Cuba whose liability included in the
computation of the arrears assessments for ONUC and UNEF.
McGILL LAW JOURNAL
[Vol. 11
1958. Payments were made, however, before the opening of the
session.13
In addition to the implications to be drawn from the past ex-
periences under Article 19 as to its mandatory application and the
respect paid to it by delinquent members (remaining absent from
proceedings until making payment although the Article only stipu-
lates a loss of the vote and does not deny participation in the pro-
ceedings), it should be observed that experience of the Specialized
Agencies with similar articles has been perfectly analogous to that
suggested by this commentary.14 In cases where the wording fol-
lows that of Article 19, the experience has been unanimously in
support of its mandatory application, with several instances of the
permission to vote being restored on record.
While this aspect of the question has not yet been debated too
extensively, it could prove to be of prime consideration should at-
tempts at a solution fail to materialize once the Assembly is con-
fronted with a vote on some matter.
II. Computation of Arrears:
The second point of contention lies in the issue of who de-
cides that the terms of Article 19 have been met. Must the Gen-
eral Assembly make a finding of fact to that effect 715
Is a
specific majority required for that purpose ? Perhaps more basi-
cally, one must consider whether the fact of arrears is a political
or arithmetical issue. The accounting procedure of the United Na-
tions can hardly be viewed as a political question, particularly once
a system has been adopted for the keeping of such records. If one
were to suggest that the comparing of amounts due with the amounts
due from a particular Member for the preceding two full years is
something which must be verified by the General Assembly, the
role of the Secretary-General as “the chief administrative officer
of the Organization” would be cast into great doubt. It is true that
the General Assembly adopts the rules by which the Secretary
13 A/3890, p. 5.
14 The Constitutions of 1LO [13 (4)], FAO 111 par. (4), UNESCO IV par. C8,
and IMCO Art. 62 as well as IAEA (XIX) par. 4, contain provisions analogous
to Article 19. Where the intention was to have a decision to suspend the vote by
the Assembly of the agency involved, the respective Constitutions expressly so
provide. e.g. WHO Art. 7; WMO Art. 31, ICAO Art. 62.
15 Having suggested that the General Assembly need not vote on the actual loss
of the vote, but that such loss flows automatically from the fact of arrears,
it remains to discuss the authority upon whom the finding of fact rests.
No. 2] ANALYSIS OF ARTICLE 19 OF U.N. CHARTER
153
General is obliged to keep the accounts, but the Secretary General
then applies them in an objective and impartial manner.
to
The General Assembly has provided such direction
the
matter of finances. Rule of Procedure 153 provides that: “The
General Assembly shall establish regulations for the financial ad-
ministration of the United Nations”. Under Rule 161, the role of
advising the General Assembly on the scale of assessments “and
on the action to be taken with regard to the application of Article
19 of the Charter” is assigned to the Committee on Contributions.
In addition, the General Assembly has unanimously adopted the
Financial Regulations to “govern the financial administration of
the United Nations…,, 16 A Controller is made responsible on be-
half of the Secretary-General for the administration of the rules
issued under these financial regulations.
“The Secretary-General shall maintain such accounting records
as are necessary and shall submit annual accounts…” according
to Regulation 11.1. Under this regulation statements are prepared
as official documents on a monthly basis showing advances to the
working Capital Fund and “contributions due” to the United Na-
tions Regular Budget, the United Nations Emergency Force Spe-
cial Account, and the Congo ad hoc Account. The authority and ac-
curacy of such reports appear never to have been challenged. The
Secretary-General reports to the General Assembly 17 on the situa-
tion of financial contributions and refers to the terms of Article 19:
“As at 14 September 1959, the contributions payable by Member States for
the years prior to 1957 have been paid in full, and for 1957 the amounts
outstanding represent in all cases less than the total contributions due for
that year. At the present time, therefore, no Member State is in arrears
in the payment of its financial obligations to the Organization to the extent
that Article 19 of the Charter would apply.”18
The only occasion on which the Committee on Contributions made
an observation as to the existence of arrears under the terms of
Article 19 has been noted above.’
It was based upon the accounts
kept under the above noted rules. Undoubtedly, the advisory capa-
city of the Committee on Contributions under Rule of Procedure
161 would call upon that Committee to advise whether the default
I6 Regulation 1.1.
17 Regulation 5.7 “The Secretary-General shall submit to the regular session of
the General Assembly a report on the collection of contributions and advances to
the Working Capital Fund.”
Is A/C. 5/778, p. 1.
19 This occurred in August of 1958 and referred to the arrears owing from
Bolivia. The Committee has normally reported that Article 19 applied against no
Member as of the time of its report.
154
McGILL LAW JOURNAL
[Vol. 1i
is due to conditions beyond the control of the delinquent Member.
Should this Committee not be in session at the time of the opening
of the General Assembly, it appears that the Secretary-General
would be called upon in his report to note the arrears according to
the accounts kept.20 This past practice, supported by similar prac-
tice of the Specialized Agencies casts grave doubt upon the sug-
gestion that the General Assembly ought to decide upon the fact
of arrears. The adoption of Rules of Procedure and Financial Regu-
lations indicate a framework within which accounts are to be kept
and the basis upon which one can mechanically establish the fact
of arrears exceeding “the amount of the contributions due from it
for the preceding two full years”. There is no suggestion by the
defaulting states at the present time that there is any mistake in
the records such that the General Assembly might be called into
the picture. The records are accepted as being accurate, conse-
quently, this fact need not be called before the Assembly. The ques-
tion of whether there exists a legal obligation to pay certain speci-
fic assessments (the amount of which is not disputed) is to be dis-
cussed under section III of this commentary.
It is thus suggested that the Assembly has no role to play in
the dispute on this point. The attempt to bring the question of fact
before the Assembly independently of any dispute as to the accuracy
of the fact involved appears to be geared to render political ques-
tions of a purely administrative nature. It would be very strange
to find the General Assembly failing to find a fact ( on the basis
of political considerations) which is not in itself questioned by the
delinquent Members. It would amount to saying that while the amount
of arrears reported is accurate, the conditions do not meet those
laid down by Article 19. Article 19 itself provides the basis on which
the Assembly may, despite the fact of arrears, decide against the
application of the first sentence of that Article –
namely, that “it
is satisfied that the failure to pay is due to conditions beyond the
control of the Member”.
If the interpretation suggested in the first two sections is cor-
rect, the question of the majority required either to effect the loss
of the vote or to establish the fact of arrears does not arise. A com-
ment should be made, however, on the reference tu the special ma-
jority required under Article 18 (2)
in view of the fact that Arti-
cle 19 does provide for a decision of the General Assembly to permit
a delinquent Member to vote despite its arrears.
20 The Pleadings to the International Court of Justice describe the procedure
followed in Certain Expenses of the United Nations, I. C. J. Reports 1962, p. 53-55.
No. 2] ANALYSIS OF ARTICLE 19 OF U.N. CHARTER
155
“2. Decisions of the General Assembly on important questions shall be
made by a two-thirds majority of the members present and voting. These
questions shall include: recommendations with respect to the maintenance
of international peace and security, the election of non-permanent members
of the Security Council, the election of the members of the Economic and
Social Council, the election of members of the Trusteeship Council in ac-
cordance with paragraph 1 (c) of Article 86, the admission of new Members
to the United Nations, the suspension of the rights and privileges of mem-
bership, the expulsion of Members, question relating to the operation of
the trusteeship system, and budgeting questions.
3. Decisions on other questions, including the determination of additional
categories of questions to be decided by a two-thirds majority, shall be made
by a majority of the members present and voting.”21
It is submitted that the reference in Article 18 to “the suspen-
sion of the rights and privileges of membership” has no connection
with Article 19, but applies to Article 5 whereby a Member “may
be suspended from the exercise of the rights and privileges of
membership”. Article 19 does not speak of a step as drastic as
that of Article 5. It merely denies the right to vote, and that denial
applies only in the General Assembly.22 Such a view is supported
by the phrase in Article 18 (2) which follows directly that noted
above –
namely, “the expulsion of Members” – which provision
is related to Article 6 of the Charter.
The attempt to expand the list under Article 18 (2) requires an
express vote to that effect “by a majority of the members present
and voting”. As Professor Kelsen observes, the provision of Arti-
cle 18 (2) on “the suspension of-rights and privileges of member-
ship” does not apply to Article 19.” …
the formula probably refers
only to the suspension of rights and privileges of membership pro-
vided for in Article 5.”23
IIl. Legal Validity of Peace Force Assessments:
Do the peacekeeping assessments constitute legal obligations to
make “financial contributions” within the meaning of Article 19 ?
If the assessments involved are within the authority of the General
Assembly, which body levied them, they are valid once apportioned
and approved by the General Assembly in accordance with Article 17.
The more vital question in the current dispute, however, is whether
the General Assembly in imposing such assessments may give them
the status of financial contributions within the meaning of Article 19.
“I Article 18 (Emphasis supplied).
22 It is suggested that the loss of vote would apply to the proceedings of the
Assembly sitting in Plenary Session or in the Main Committees.
23 The. Law of the United Nations, 1951, p. 719.
McGILL LAW JOURNAL
[Vol. 11
In a recent advisory opinion, the International Court of Justice
concluded (with a majority of nine to five) that the expenditures
authorized by the General Assembly for peacekeeping operations in
the Congo and the Middle East “constitute ‘expenses of the Organiza-
tion’ within the meaning of Article 17, paragraph 2, of the Charter
of the United Nations”. 24 The General Assembly, by resolution
1854 (XVII) on December 19, 1962 “accepts the opinion of the Court
on the question submitted to it” thereby confirming that the expenses
for ONUC and UNEF are “expenses of the Organization” and, hence,
included with the “financial contributions to the Organization” under
Article 19.25
The counter argument is that expenses resulting from these
operations for the maintenance of international peace and security,
are not “expenses of the Organization” within the meaning of
Article 17, paragraph 2, of the Charter, inasmuch as such activities
are left exclusively to the authority of the Security Council through
agreements negotiated in accordanc, with Article 43 of the Charter.
This would mean that only the Security Council is authorized to
decide on any aspect of an action relative to the maintenance of
international peace and security. It is further argued that the General
Assembly is limited to discussing, considering, studying and re-
commending action, but cannot impose an obligation to pay the
expenses which result from their implementation. 6
The crux of the issue is whether the authority given to the Security
Council is “exclusive” or “primary”. Article 24 of the Charter
provides:
“In order to ensure prompt and effec’.ive action by the United Nations, its
Members confer on the Security Council primary responsibility for the main-
tenance of international peace and security…
Chapter VII of the Charter gives exclusive authority to the
Security Council to require enforcement by coercive action against
2 7
24 I.C.J. Reports, 1962, p. 156 at 179-180.
25 This resolution was passed by a vote of 76-17-8 despite an amendment sub-
mitted by Jordan to replace “accepts” by “takes note of” with the declared inten-
tion of avoiding the inclusion of UNOC and UNEF assessments in the computa-
tion of the requisite arrears under Article 19. The amendment was defeated
68-28-14. (See General Assembly Seventeenth Session, Official Records, 964th
meeting of the Fifth Committee; par. 4 and the resolution adopted by the General
Assembly – Resolution 1859 (XVII) on December 19, 1962.
26 See I.C.J. Pleadings, Certain expenses Of the United Nations. See particularly
the submissions by Mexico (p. 90), the Republic of South Africa (p. 260), the
(p. 207- 209 )
U.S.S.R.
(p. 273). For rebuttal, see Australia (p. 233-238), U.S.A.
and Sir Kenneth Bailey’s oral presentation (Australia) (p. 372-377).
27 Emphasis supplied.
No. 2] ANALYSIS OF ARTICLE 19 OF U.N. CHARTER
157
an aggressor. Does this exclude the concern and capacity of the
General Assembly for matters of international peace and security ?
That the powers of the General Assembly exceed that of mere
is evidenced by Article 18 which provides for
recommendation
the majorities by which “Decisions of the General Assembly… shall
be made”. These include the suspension of the rights and privileges
of membership, expulsion of Members, “and budgetary questions”.
That Article 17 (2) permits the General Assembly to apportion
expenditures is not disputed. But does this imply a capacity to
apportion expenditures incurred by the General Assembly for peace-
keeping operations ?
As to whether the General Assembly has acted beyond its authority
under the internal constitutional arrangements, the answer cannot
come by reference to an authority which can interpret the Charter
in an authoritative or binding manner. This lays the foundation
for a dispute destined to be plagued by political considerations, legal
and logical uncertainties, and firm stands on issues making face-
saving devices difficult to find. It is fine to consider the undertaking
in question desirable from the vantage point of our individual
prejudices or outlooks; it is probably true that the measures were
in keeping with the “purposes of the United Nations” as outlined
in Article 1 28 and one might argue that they were necessary to
prevent the outbreak of violence at the time and place of iheir
implementation; but policy justification (although it might ultimately
be the basis upon which Members take firm stands on the issue)
permits of alternative policy bases from which to proceed to a
conclusion. Consequently, a desire to see a force in existence is the
premise upon which much subsequent analysis is done after resorting
to the General Assembly in the face of an insurmountable veto
power in the Security Council. 29 On this basis words such as “the
General Assembly may recommend measures for the peaceful adjust-
28 The first such purpose being cited as: “To maintain international peace and
security…”
29 The United States has rarely found that any UN project has run counter to
its own national interest and has, thus, usually appeared as the champion of the
neutral UN. However, the U.S. did find a conflict in June 1961 when the Governing
Council of the Special Fund was considering projects of many countries, including
one for Cuba which sought over $1,000,000. The pressure of Congress resulted
in a negative vote and rationalization of its position as the sole opponent of the
Cuban project. The reason provided was that of unstable economic conditions,
although the delegation saw no objection to a project for the Republic of Korea
immediately following a military coup d’6tat. This is not meant to criticize, but
to point up the ultimate preferance for national interest of even the strongest
of the Member nations and one which has often revealed an admirable objective
quality with regard to the role of the UN. Russia is greatly concerned over
McGILL LAW JOURNAL
[Vol. 11
ment of any situation…” 30 are deemed to import the capacity to
take measures although it might be suggested that Article 11 limits
its authority over this aspect to that of making “recommendations
with regard to such principles to the Members or to the Security
Council or to both”; 31 that the exclusive area of authority of the
Security Council is limited to the implementation of action directed
against States 32, while the enforcement of peace and security lies
also with the General Assembly.
Thus, one possible answer to the problem posed is the decision
that the General Assembly did, indeed, have the capacity to act as it
did with regard to the operations in the Middle East and in the
Congo. That is, not only does the operation of peacekeeping fall
within the substantive power of the United Nations, 33 but also it
meets with the procedural qualifications of the Charter.
The measures taken are seen as attempts to counteract threats
to international peace, not as constituting sanctions contemplated in
Chapter VII of the Charter. The power to initiate such operations
is usually based upon the authority given to the Organization under
Article 1 (1) 34 with the subtraction of only specific powers for the
Security Council.
There is the further authority of the “Uniting for Peace”
Resolution 35 on which to base this interpretation of the Assembly’s
residual role in the maintenance of peace and security where the
Council fails to fulfil its primary responsibility. However, this
Tesolution is not as strong a support as one might think at first
glance since it only contemplates an authority for the Assembly to
the trend of shifting power from the Security Council to the General Assembly,
while the new nations likely find attractive the availability of military help
should the need arise in their territories.
30 Article 14.
31 Except where precluded from doing so by Article 12.
32 This is concluded from Chapter VII. This view postulates that the general
capacity of the Organization to take “collective measures” (Article 1 (1))
is
broader than the authority of the Security Council to take “enforcement mea-
sures” against states.
3It might be noted that several writers have suggested that the activities
to date were really action by Members under the request of the Organization
rather than “collective measures” of the Organization itself, which collective
measures require implementation via the agreements envisaged by Art. 43 though
never concluded. For discussion of this see J. W. Halderman Legal Basis for
United Nations Armed Forces, Vol. 56, A.J.I.L., p. 971.
34 Article 1(1) accords this authority to the Organization and NOT to the
Security Council.
35 Resolution 377 (V) Nov. 3, 1950, General Assembly, 5th Session, Official
Records Supp. No. 20 at 10-12. UN Doc A/1775 (1950).
No. 2] ANALYSIS OF ARTICLE 19 OF U.N. CHARTER
159
recommend steps to the Members. 36 Herein lies the major objection
to this proposed answer to the current assessment disagreement –
that is, the objectives of Article 1 (1) must be achieved by means
of the machinery provided by the remainder of the Charter, and
that the only ability to implement a peace force lies with its express
provision in Chapter VII of the Charter. This view calls into support
Articles 10, 11 (2) and 14 which reveal the role to be played by the
Assembly in general, as one of recommendation to which Members
may respond. 37 Thus, the finding that the scope of “collective
measures” which the UN as a whole is competent to undertake is
broader than the authority given to the Security Council, merely
renders action taken by Members a “collective measure”, but does
not necessarily qualify it as an operation which the General Assembly
can undertake with a view to paying the expenses thereby incurred
by the participating Members. This would enable the UN to act,
while not necessarily denying the monopoly of the Security Council
in the area where the expenses are to be borne by the Members. The
view that “under international law, 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”3 8 does not necessarily
mean that it can ignore the procedures and appropriate organs pro-
vided for such activities by the Charter itself. Consequently, the
recommendations made by the Assembly would not become legally
binding orders that Members participate in such collective measures,
being only bound to comply with such orders as emanate from the
Security Council.39
The General Assembly could undoubtedly adopt regulations for
the establishment of forces to be put at the disposal of the Organiza-
tion. Members could be urged to make such forces available without
any claim of a violation of the Charter being validly made. Such a
recommendation leaves the Members with individual discretion to
refuse to comply.
36 The only response offered to this observation by the advocates of the capacity
of the Assembly in this area is that this is a voluntary limitation by the As-
sembly of the plenitude of its powers to achieve the objectives laid out in
Article 1 (1).
37 The Assembly may thus recommend action to the Members which is essen-
tially different from that which is within the authority of the Security Council.
Consequently, response by individual Members to the request would constitute
”collective measures” in its wider sense and not amount to an illegal act of war.
3 8 Reparation for Injuries Suffered in the Service of the United Nationa,
Advisory Opinion
(1949) I.C.J. Rep., 174 at 182.
39 It has been suggested that the scope of the power possessed by the military
forces set up by Assembly recommendation are limited to non-interventionist roles.
McGILL LAW JOURNAL
[Vol. 11
An alternative avenue of justifying General Assembly action in
this field, in addition to the above capacity to recommend, lies in
Article 22 which provides that: “The General Assembly may establish
such subsidiary organs as it deems necessary for the performance
of its functions.” 40 It has been argued that such subsidiary organs
should be established only to assist the Assembly in its deliberative
and investigatory functions. However, the acceptance of a practice
of permitting the appointment of additional personnel to commissions
for such purposes as, mediation and enforcement of truce agreements
or guards to defend UN missions, seems to permit wide scope to
the type of personnel which may be thereby appointed 4′, including
military personnel. Under such a heading there appears to be no
limit on the amount of expense which a two-thirds majority of the
Assembly could impose upon all Members by virtue of Article 17.
The assessments for the UNEF and ONUC have not been structured
to include the totality of the costs involved for these operations.
Part has been left to the method of voluntary contributions, a device
used for a significant portion of the UN’s activities.42 In the long
run, however, such activities as the Peace Force Operations cannot
be left to the vagaries of voluntary support.
Thus, the Assembly can implement action under Article 22. It
can also, at least, recommend action to Members under its general
powers. Under the latter source of authority, can the Assembly
then bind its Members to participate in the expenses thus incurred
in view of its role in implementing the peace force involved ?
Article 17 makes it quite clear that the General Assembly is the
ultimate budgetary authority, and Article 18 sets a majority of
two-thirds for such questions. The original resolution on UNEF
passed the Assembly unanimously, while the first resolution on its
financing passed by a vote of 62 in favour, 8 against, with 7 absten-
tions. This resolution provided
… that the expenses of the United Nations Emergency Force other than
for such pay, equipment, supplies and services as may be furnished without
charge by Governments of Member States, shall be borne by the United
Nations and shall be apportioned among the Member States, to the extent
4o Many very useful committees and commissions have been established under
this Article. e.g. the Commission on Kores (1948).
41 It has even been suggested that a UN Force may be established as part
of the Secretariat under Article 97, providing the appropriate budgetary approval
is made by the Assembly. This does not fit the current situation since the con-
tingents involved are of specific national affiliation.
important voluntary programmes are: UNICEF, UNHCR,
42The more
UNRWA, EPTA and Special Fund.
No. 2] ANALYSIS OF ARTICLE 19 OF U.N. CHARTER
161
,,NS
of 10 million dollars, in accordance with the scale of assessments adopted
by the General Assembly for contributions to the annual budget of the
Organization for the financial year 1957 …
The fact that both the UNEF and ONUC budgets were assessed
via separate accounts to avoid delay in securing funds for an
operation which demanded immediate implementation should not
form the basis for any legal distinction between these and regular
budget assessments. In the case of the Congo operations the Assembly
resolution deliberately assessed $48,500,000 on the basis of the 1960
scale to be “binding legal obligations” on the members according
to Article 17,44 as a first allocation of funds to this project. Here
the Security Council had approved unanimously beforehand. Not-
withstanding the fact that the Security Council had approved the
force, the Soviet Union insists that the Assembly cannot even decide
upon the assessment of expenses for action which it claims fall under
Article 48, thereby subjecting the assessments as well to the unanimity
of the major powers in the Council.
the Assembly can only recommend,
It is submitted that even if the Security Council must approve
the
certain actions which
unanimity principle cannot be reasonably extended to matters of
finance where the General Assembly is supreme.45 That is, the
Council need not be the exclusive body to assess the expenses even
if it must approve the undertaking. It is particularly this supremacy
and the flexibility of assessment granted to the Assembly (along
with the provisions of Article 19) which were placed in the UN
Charter after the lesson was learned under the League Covenant.
While the Assembly could have agreed to finance these particular
expenses independently of Article 17, the Members, by a sufficient
majority, chose to implement the assessments through the ordinary
procedure.
Failure to invoke the sanction of Art. 19 in the face of assessments
made by the General Assembly and declared to be “binding legal
obligations” in at least one case in question (ONUC Resolution of 20
December, 1960) would make a mockery of the Charter provisions.
On the other hand, the political expedience of enforcing Article 19
at this time is cast into great doubt lest it give truth to the prophets
43 General Assembly Resolution 1089 (XI) 21 Dec. 1956.
44 General Assembly Resolution 1590 (XJ) 20 Dec. 1960. N.B. The authoriza-
tion for the establishment of this undertaking came from the Security Council to
(UN Security Council, Official Records, (SCOR); 15th
the Secretary General.
year, Supplement for July-Sept. 1960. (Doc S/4387) p. 16.
43 Certainly if the Assembly is not acting beyond its power, it can then assess
the
,xpenses according to the requirement of Articles 17 and 18.
McGILL LAW JOURNAL
[Vol. i.1
of doom who foretell of a financial collapse of the latest attempt at
an international organization or an equally effective death by means
of a withdrawal of several powerful states.40
In the final analysis the discussion of finances of the United
Nations is but a reflection of the problems of creating a world
community in the face of divergent ideologies and policies. A more
fundamental accord will have to precede the establishment of any
permanent solution to the dilemma of financing international peace
and security.
46 Limited withdrawals proved ineffective in the past and Russia returned.
The recent withdrawal of Indonesia, however, leaves many less confident of the
attitude that no Member would feel it advantageous to walk out.
