Last updated 09/07/24: Online ordering is currently unavailable due to technical issues. We apologise for any delays responding to customers while we resolve this. For further updates please visit our website: https://www.cambridge.org/news-and-insights/technical-incident
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 28 March 2017
The present paper was written before Ambassador Goldberg’s statement at the 15th meeting of the Special Committee on Peace-Keeping Operations on Aug. 16, 1965 (U.N. Doc. A/AC.121/P.V.15 (Aug. 16, 1965)), in which he announced that, in deference to the view of the majority members, the 20th Session of the General Assembly should follow normal procedure. The XT. S. would therefore not press for the application of Art. 19 in respect to arrears arising out of the ONTJC and UNEF operations. The paper may nevertheless be of interest as an indication of an approach which differs from those discussed in the Special Committee and which might have some relevance to future peacekeeping operations.
1 See Report of the Special Committee on Peace-Keeping Operations (U.N. Doc. A/ 5915, June 15, 1965), par. 2.
2 The records of the meetings will be issued at a later date as Annex I, ibid.
3 Ibid.,par. 11.
4 The Pazhwak plan was formulated toward the end of 1964 and formed the basis for the twelve-nation Afro-Asian plan, on which the Ethiopian draft resolution (see the following note) was in turn based. See statement by the Ethiopian delegate, Mr. Tesfaye Gebre-Egzy, in XJ.N. Doe. A/AC.121/P.V.6 (May 6, 1965).
5 See U.N. Doc. A/AC.121/L.1 and Rev. 1.
6 See U.N. Doc. A/AC.121/L.2.
7 See statement by the Spanish delegate, Sr. Don Manuel Aznar, in U.N. Doc. A/ AC.121/P.V.12 (June 14, 1965).
8 The Congolese request was first made by the late Prime Minister Lumumba and President Kasavubu to United Nations Under Secretary Balpb Bunche on July 10, 1960, in Leopoldville. By cables of July 12 and 13, 1960, the President and Prime Minister again requested the Secretary General of the United Nations to urgently dispatch military assistance against the Belgian aggression and the secessionist movement of Katanga Province as-a result of “colonialist machinations.” See U.N. Doc. S/4382.
9 See Security Council Bes. S/4387, adopted on July 14, 1960 (U.N. Doc. S/4389).
10 There is no question but that it was primarily the internalbreakdown of law and order in the Congo which prompted the United Nations response to the Congolese request, on the ground that such a breakdown “had created a situation which through its consequence imposed a threat to peace and security justifying United Nations intervention.” See U.N. Doc. S/4389 and General Assembly Bes. 1474 (ES-IV), adopted on Sept. 20, 1960.
11 U.N. Doc. A/AC.121/4 (May 31, 1965), p. 5. This document will be issued at a later date as Annex I I of the Report of the Special Committee on Peace-Keeping Operations (A/5915, June 15, 1965).
12 U.N. Doc. S/4387 (I960).
13 See U.N. Doc. S/4389, par. 7.
14 Indeed, the International Court of Justice explicitly stated that the ONUC operations did not involve “preventive or enforcement measures” against any state under Chapter VII. See Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion of July 20, 1962, [1962] I.C.J. Rep. 177. Mr. Oscar Schachter, Director of the General Legal Division of the United Nations, stated that, in rendering assistance to the Congo, the “legal authority of the United Nations was subordinated to that of the Congolese Government.” (1963 Proceedings, American Society of International Law 224.) This would place the United Nations actions beyond the purview of Chapter VII of the Charter since, under that Chapter, the Security Council, by virtue of the binding nature of its orders to Members, should enjoy clearly a superior,rather than a subordinate,legal authority.
15 In the face of the appearance of many new-born states, the United Nations has, rightly or wrongly, undertaken functions not specifically authorized by the Charter. The lawfulness of this action appears to have been upheld by the International Court of Justice, which stated in Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion of July 20, 1962 [1962] I.C.J. Eep. 168: “ … when the organization takes action which warrants the assertion that it was appropriate for the fulfillment of one of the stated purposes of the United Nations, the presumption is that such action is not ultra viresthe Organization.'’ One of those functions not specifically authorized by the Charter has been the assumption of the r61e of an agent for states as a means of furthering the purposes of the Charter. A case in point was the United Nations administration of West Irian at the request and on behalf of Indonesia and The Netherlands. See the Indonesian-Netherlands Agreement concerning West New Guinea (West Irian) of Aug. 15, 1962 (437 U.N. Treaty Series 273); their joint letter to the Acting Secretary General on Aug. 15, 1962 (ibid.294), requesting the United Nations to render assistance in implementing their Memorandum of Understanding on the cessation of hostilities in West Irian (Hid.296); reply by the acting Secretary General, U Thant, dated Aug. 15, 1962 (ibid.300); and exchange of letters concerning the issue of passports and consular protection during the administration of West New Guinea (West Irian) by the United Nations Temporary Executive Authority (UNTEA), dated Aug. 15, 1962 (ibid.304). If the United Nations could act as an agent in the West Irian case, it could a fortioriso act in the Congo, since maintenance of law and order constitutes only a fraction of the general administration of a territory. There are differences, to be sure, between the two cases: (a) in the West Irian case, reimbursement for costs was specifically provided in the agreement between the two principals and the agent, whereas in the Congo case no such provision could be found; and (b) in contrast to its compliance with all the requests of the principals in the West Irian case, the United Nations acted on several occasions in a manner contrary to the specific wishes of the Congolese Government. However, neither of these differences would invalidate the r?1e of the United Nations as acting in a representative capacity in the Congo for the following reasons: In the first place, by definition, “agency in fact” or “agency arising out of necessity” (“Gesch?ftsf?hrung ohne Auftrag,” “Qestion d'affaires,”or the Koman principle of “de negotiis gestis“)comes into being in the absence of any specific agreement concerning reimbursement for costs by the principal, so long as the agent's actions are performed on his behalf, demonstrable by the resultant benefits, and are subsequently ratified by him (e.g., by receiving or retaining the benefits). Justification for instances in which the United Nations acted contrary to the wishes of the Congolese Government or even disarmed the latter's troops may lie in the fact that the United Nations, even as it was serving as the Congo's agent in maintaining law and order, could not overlook its more fundamental obligation—that of upholding the sanctity of the Charter. Article 103 of the Charter specifically provides: “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.” The primacy of the Charter obligations applies tt fortiorito the United Nations itself in all its undertakings.
