Secretary-General to submit within forty-eight hours "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. ..." U.N. Doc. No. A/RES/998(ES-I) (1956). The same day, the Secretary-General submitted his first report on the creation of the United Nations Emergency Force, or, as it came to be known, UNEF. U.N. Gen. Ass. Off. Rec. 1st Emergency Spec. Sess., Annexes, Agenda Item No. 5, at 14 (A/3289) (1956). On 5 November, the Assembly, acting upon the Secretary-General's report, adopted by a vote of 57-0-19 Resolution 1000 (ES-I), which, by its own terms, established a United Nations Command for an emergency international force. The resolution appointed a Chief of Command of the Force, and asked the Secretary-General to take the necessary administrative measures for prompt execution of its resolution. By midnight of 6-7 November, a cease-fire was achieved.

On 7 November, the Secretary-General submitted his second report on the plan for UNEF. Id. 1st Emergency Spec. Sess., Annexes, Agenda Item No. 5, at 10 (A/3302) (1956). By the terms of his proposal, the deployment and operations of the Force would be subject to the consent of the Governments concerned. Thus, the Force would be designed to induce and facilitate a cease-fire and withdrawal of troops, rather than to impose withdrawal.

UNEF was conceived, from the outset, as a subsidiary organ of the General Assembly within the terms of Article 22 of the Charter. This was expressly confirmed by the Secretary-General in his summary study of the experience derived from the establishment and operation of the Force. Id. 13th Sess., Annexes, Agenda Item No. 65, at 24 (A/3943) (1958). It is also reflected in the Regulations of the Force. U.N. Doc. No. ST/SGB/UNEF/1, at 2 (1957). The Agreement between the United Nations and Egypt concerning the status of UNEF in Egypt equally specifies that UNEF is an organ of the General Assembly established in accordance with Article 22. Id. 11th Sess., Annexes, Agenda Item 66, at 52-53 (A/3526) (1957). UNEF was to be an international organ, with its responsible officers appointed by the United Nations. It was to be a United Nations instrument fully independent of the policies of any one nation. UNEF was to fulfill a dual role: supervising the cease-fire and withdrawal of foreign armed forces from Egyptian territory, and maintaining peaceful conditions in the area by its deployment along the armistice line and international frontier.

The Assembly approved the guiding principles set out in the Secretary-General's report for the organization and functioning of UNEF on 7 November by a vote of 64-0-12. U.N. Doc. No. A/RES/1001 (ES-I) (1956). By July 1957, UNEF had grown to a complement of some 6,000 officers and men voluntarily contributed by ten Member States. From the outset, it has discharged its duties with conspicuous success. It continues to make an essential contribution to peace in the Middle East.

B. United Nations Operations in the Congo (ONUC)

On 30 June 1960, the Republic of the Congo (Leopoldville) was proclaimed independent. Rioting broke out two days later. Congolese soldiers mutinied on 5 July, and by 8 July serious disorder had

spread, accompanied by violence against the European population. More than 1,300 women and children, principally Belgians, fled to Brazzaville. That day, Belgian paratroopers were flown into Leopoldville to reinforce Belgian bases in the Congo. More Belgian troops followed with the mission of protecting Belgian lives and property.

On 11 July, Premier Lumumba requested technical assistance from the United Nations to aid in organizing and developing the Congolese army. On the same day, the Congolese province of Katanga issued a claim of independence. Both the President and the Premier of the Congo on 12 July 1960 cabled the Secretary-General of the United Nations requesting the "urgent dispatch" of United Nations military assistance in response to "the unsolicited Belgian action." The appeal stated that, "The essential purpose of the requested military aid is to protect the national territory of the Congo against the present external aggression which is a threat to international peace." U.N. Doc. No. S/4382 (1960). United Nations technical assistance of a civil character was also requested. For its part, the Belgian Government made clear that it would welcome United Nations troops to keep order in place of the Belgian forces.

Acting under Article 99 of the Charter, the Secretary-General convoked an immediate meeting of the Security Council in response to the Congolese plea. That meeting culminated in the adoption of a Tunisian-sponsored resolution, based on the Secretary-General's recommendation, which called upon Belgium to withdraw its troops from Congolese territory and authorized the Secretary-General to provide the Congolese Government with the necessary military assistance until its national security forces were able to meet fully their tasks. U.N. Doc. No. S/4387 (1960). That military assistance the United Nations Operations in the Congo (ONUC)-was organized and dispatched with great speed. It quickly became, in Dag Hammarskjold's words, the "biggest single effort under United Nations colours, organized and directed by the United Nations itself." U.N. Security Council Off. Rec. 15th year, 877th Meeting 4 (S/PV.877) (1960). That effort has since been endorsed, sustained and broadened by the Security Council and General Assembly in a series of resolutions, carried by very large majorities. U.N. Docs. Nos. S/4405 (1960), S/4426 (1960), S/4741 (1961), S/5502 (1961), A/RES/1447 (ES-IV) (1960), A/RES/1599 (XV) (1961) and A/RES/1600 (XV) (1961).

When, in September 1960, the Security Council reached an impasse, the General Assembly was seized of the problem, pursuant to Resolution 377 (V), in emergency special session. The Assembly reaffirmed the resolutions of the Security Council and requested the SecretaryGeneral to

continue to take vigorous action in accordance with the terms of the aforesaid resolutions and to assist the Central Government of the Congo in the restoration and maintenance of law and order throughout the territory of the Republic of the Congo and to safeguard its unity, territorial integrity and political independence in the interests of international peace and security. . . . U.N. Doc. No. A/RES/1474 (ES-IV) (1960).

The vote on that resolution was 70 in favor, none opposed, with 11 abstentions.

The Congo situation continues to command the Organization's attention. Large numbers of United Nations troops-some 15,000 on

1 January 1962-and United Nations civilian and technical assistance personnel are being devoted to a bold enterprise, the attitude towards which, in the words of the late Secretary-General, is of "decisive significance... not only for the future of this Organization, but also for the future of Africa. And Africa may well, in present circumstances, mean the world." U.N. Security Council Off. Rec. 15th year, 877th meeting 4 (S/PV.877) (1960).

C. Financial consequences

The forces established in response to the Middle East and Congo crises plainly had to be paid for. The scale of the requisite financing, in comparison with traditional United Nations budgeting, was and is large. In fact, the combined annual assessment for UNEF and ONUC has amounted to more than twice the cost of the remainder of the United Nations budget. Payments of UNEF and ONUC assessments by State Members have been variable and irregular. Certain Members have refused to pay their assessments, asserting political or legal justifications for default. Others, without contesting their legal obligations to pay such assessments, have pleaded inability to pay. Still others have made no plea at all.

The result has been a large accrual of arrears. As of the end of 1961, the Acting Secretary-General estimated the Organization's unpaid obligations to total $107.5 million (a figure later actually found to total $113.9 million). He estimated that, by 30 June 1962, "the gap between the debts of the Organization and its available net cash resources will have increased to approximately $170 million. . . . The Organization's cash position he pronounced to be "critical." The Acting Secretary-General, on 11 December 1961, summarized the outlook in these terms:

Mr. Chairman, the United Nations will be facing imminent bankruptcy, if, in addition to earliest possible payment of current and, particularly of arrear assessments, effective action is not promptly taken for the purpose of (i) enabling outstanding obligations to be settled; (ii) improving the cash position; and (iii) providing needed financing for approved continuing activities. U.N. Doc. No. A/C.5/907 at 3-4 (1961).

It was in the light of this financial crisis that the General Assembly voted to request the Court's opinion on an issue vital to the Organization's solvency, its credit, its capacity for accomplishing what it has undertaken and what, in the future, its responsibilities for the peace of the world may require it to undertake.

SUMMARY OF ARGUMENT

I

In adopting the assessment resolutions before the Court, the General Assembly invoked its authority under Article 17 of the Charter to apportion "expenses of the Organization" among the Members. The language of the first ONUC resolution expressly characterizes the Assembly's action in this fashion. Most of the other UNEF and ONUC resolutions repeat the language of Article 17, thus manifesting the intention to act under that article. Special accounts were established for each operation as a matter of accounting convenience rather

than as an expression of intention to modify the binding character of the assessments. These conclusions are borne out by the debates preceding adoption of the resolutions-particularly by the statements of the Secretary-General-and by the budgetary procedures employed in their preparation and consideration.

II

A. The consequence of such General Assembly action is to create binding legal obligations upon the Member States. The language of Article 17 is mandatory: "expenses shall be borne." (Emphasis added.) It answers the prescription of the Advisory Committee of Jurists at the San Francisco Conference for a "clear statement of the obligations of Members to meet the expenses of the Organization." The Charter adopts the language of the corresponding article of the Covenant of the League of Nations, which has been authoritatively construed to empower the League Assembly to create a binding legal obligation.

B. This power to create binding obligations by assessment extends to assessments for expenditures relating to operations for the maintenance of international peace and security. Although the Security Council has "primary responsibility" in this field, it has no budgetary or fiscal authority under the Charter. The practice of the League, the budgetary and financial practice of the United Nations and the applicable judicial decisions all bear out the conclusion that the Assembly's fiscal power is exclusive.

C. Finally, the same authorities lead to the conclusion that the Assembly may create binding obligations to finance operational expenditures, even though, as regards contributions of troops, the substantive resolutions are only recommendatory for the Member States. D. To construe the General Assembly's fiscal power more narrowly than is here suggested would seriously limit the capacity of the Organization for effective action in pursuit of its paramount purpose, the maintenance of international peace and security.

III

The question submitted to the Court, as framed, is not directed to the validity of the underlying resolutions establishing UNEF and ONUC. The question can be answered without addressing those issues. For, at a minimum, the Secretary-General could make commitments to States and third parties in the execution of the directives laid upon him by those resolutions, absent an authoritative determination invalidating them. The General Assembly has power to raise money to discharge the financial obligations arising from such commitments. Indeed, "to this extent [it] has no alternative but to honour these engagements." Moreover, in any event, the underlying resolutions are valid. They were adopted by the General Assembly and Security Council in the exercise of the authority, expressly granted in the Charter, to consider and deal with questions involving the maintenance of international peace and security.

IV

Miscellaneous contrary arguments are not persuasive.

ARGUMENT

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I. THE GENERAL ASSEMBLY, IN THE ASSESSMENT RESOLUTIONS BEFORE THE COURT, UNMISTAKABLY MANIFESTED ITS INTENTION TO TREAT EXPENDITURES FOR ONUC AND UNEF AS "EXPENSES OF THE ORGANIZATION' UNDER ARTICLE 17 OF THE CHARTER, TO BE APPORTIONED AMONG THE STATES MEMBERS OF THE UNITED NATIONS

A. Assessment resolutions relating to UNEF

During the first days of the life of UNEF the most pressing questions concerning the Force were questions of action-recruitment, command and staff problems, transportation, and the details of supervising, on the scene in the Middle East, a cease-fire and withdrawal of troops. Financial problems were secondary, and at this stage were treated in a provisional fashion. By 26 November, three weeks later, the Force was operating successfully and the General Assembly was able to turn its attention to definitive arrangements for financing the enterprise.

On 21 December 1956, after an exhaustive debate, the General Assembly adopted, by a vote of 62-8-7, Resolution 1089 (XI) levying assessments for the Force in the amount of $10 million. The relevant operative paragraph of that resolution provides:

The General Assembly,

1. Decides 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 of $10 million 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.

It will be seen that the resolution adopts the language of Article 17 (2) of the Charter, which provides: "The expenses of the Organization shall be borne by the Members as apportioned by the General Assembly." In an unmistakable parallelism, the resolution prescribes that "the expenses of the United Nations Emergency Force" shall be "borne by the United Nations" and shall be "apportioned among the Member States" in accordance with a defined formula. Thus, the language of the resolution at the same time invokes and exercises the authority of Article 17 (2).

The intention to act under Article 17 emerges equally clearly from the record of General Assembly consideration which preceded adoption of the resolution. The resolution appeared first in draft form as an annex to the Secretary-General's report of 21 November 1956 on administrative and financial arrangements for the United Nations Emergency Force. U.N. Gen. Ass. Off. Rec. 11th Sess., Annexes. Agenda Item No. 66, at 13 (A/3383) (1956). The resolution was drafted to embody the position set forth by the Secretary-General in