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.
