1962

ICJ

Certain expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion 20 July 1962

By a resolution on 20 December 1961, the GA request the ICJ an advisory opinion on: whether certain expenditures which were authorized by the General Assembly to cover the costs of the United Nations operations in the Congo (ONUC) and of the operations of the United Nations 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". (p. 155) The power of the Court to give an advisory opinion is ... is of a discretionary character ... the Court can give an advisory opinion only on a legal question. If a question is not a legal one, the Court has no discretion in the matter; it must decline to give the opinion requested. But even if the question is a legal one, which the Court is undoubtedly competent to answer, it may nonetheless decline to do so ... only "compelling reasons" should lead it to refuse to give a requested advisory opinion

(p. 162) it has been argued before the Court that one type of expenses, namely those resulting from 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 they fa11 to be dealt with exclusively by the Security Council (p. 163) The responsibility conferred is "primary", not exclusive. This primary responsibility is conferred upon the Security Council, as stated in Article 24, "in order to ensure prompt and effective action". To this end, it is the Security Council which is given a power to impose an explicit obligation of compliance if for example it issues an order or command to an aggressor under Chapter VII. 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…” The word "measures" implies some kind of action, … Thus 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; they are not merely hortatory