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The “Corporate Will” of the United Nations and the Rights of the Minority

Published online by Cambridge University Press:  27 February 2017

Elisabeth Zoller
Elisabeth Zoller*
Affiliation:
Rutgers University-Camden
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Extract

In contrast to the withholding practices of certain member states in respect of part of their assessed contributions to the budget of the United Nations, United States withholding began rather recently. U.S. withholding started in 1980 and, until 1985, applied only to specific programs and decisions. Previously, in 1978, the Legal Adviser of the Department of State had concluded in a memorandum of law that Article 17 of the UN Charter “impose[s] a legal obligation on members to pay the amount assessed to them by the General Assembly.” Referring to the U.S. written statement submitted to the International Court of Justice in Certain Expenses of the United Nations, he added: “Accordingly, the General Assembly’s adoption and apportionment of the Organization’s expenses create a binding international legal obligation on the part of State Members to pay their assessed shares.” In his view, there was apparently no possible exception to this obligation.

Type
Research Article
Information
American Journal of International Law , Volume 81 , Issue 3 , July 1987 , pp. 610 - 634
Copyright
Copyright © American Society of International Law 1987

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References

1 See Fleischhauer, C.-A., paper presented at the meeting held by the American Society of International Law on the UN financial crisis, infra note 15, para. 3 (June 12, 1986)Google Scholar.

2 Hansell, , Memorandum of Aug. 7, 1978 Google Scholar, 1979 Digest of United States Practice in International Law [hereinafter 1979 U.S. Digest] 225, 226.

3 U.S. Written Statement, 1962 ICJ Pleadings (Certain Expenses of the United Nations) 180, 193 (February 1962).

4 Hansell, supra note 2, at 226 (quoting U.S. Statement, id.).

5 22 U.S.C. §287e note (Supp. III 1985).

6 Statement of President Ronald W. Reagan, Dec. 30, 1982, [1982] 2 Pub. Papers 1652, reprinted in U.S. Mission to the United Nations, Press Release No. USUN 1-(83), Jan. 3, 1983. See Note, United Nations Financing of the Law of the Sea Preparatory Commission: May the United States Withhold Payment?, 6 Fordham Int’l L.J. 472, 473 nn.5 and 6 (1985).

7 Department of State Authorization Act, Fiscal Years 1984 and 1985, §114(a), Pub. L. No. 98–164, 97 Stat. 1017,1020 (approved Nov. 22, 1983) (codified at 22 U.S.C. §287e note (Supp. III 1985)).

8 Such is the reference in Statutes at Large, infra note 9, and in the United States Code as well (22 U.S.C. §287e note). Presumably, Congress meant Resolution 3379 (XXX) of Nov. 10, 1975, determining “that zionism is a form of racism and racial discrimination,” 30 UN GAOR Supp. (No. 34) at 83, 84, UN Doc. A/10034 (1975), and not Resolution 33/79 on Revision of the lists of States eligible for membership in the Industrial Development Board, 33 UN GAOR Supp. (No. 45) at 83, UN Doc. A/33/45 (1978).

9 Foreign Relations Authorization Act, Fiscal Years 1986 and 1987, §144, Pub. L. No. 99– 93, 99 Stat. 405, 424–25 (approved Aug. 16, 1985) (codified at 22 U.S.C. §287e note (Supp. III 1985)).

10 Id. §143, 99 Stat, at 424 (codified at 22 U.S.C. §287e note (Supp. Ill 1985)). It took 2 years for the Kassebaum initiative to become law. Its original version (see The U.S. Role in the United Nations: Hearings Before the Subcomm. on Human Rights and International Organizations of the House Comm. on Foreign Affairs, 98th Cong., 1st Sess. 85 (1983) [hereinafter 1983 House Hearings]) provided that U.S. assessed payments to the United Nations, UNESCO, the WHO, the FAO and the ILO for 1984

shall not exceed its assessed payments to each such organization for the calendar year 1980. Such payments to each such organization for the calendar years 1985, 1986, and 1987 shall be no more than 90 per centum, 80 per centum, and 70 per centum, respectively, of the amount of the assessments paid to each such organization for the calendar year 1980.

The original version further provided that payments to those organizations for the calendar years 1985, 1986, and 1987 would be withheld unless the specified reductions were “accepted by the respective organization as payment in full of the United States assessment towards the financial support of such organization.”

In 1985 congressional political support for the United Nations foundered. On May 8, Congressman Jerry Solomon proposed a floor amendment aimed at cutting at least 15% of the U.S. assessment for FY 1987. See 131 Cong. Rec. H2995 (daily ed. May 8, 1985). The amendment was agreed to without a vote (id. at H2997), “with only the briefest reference as to the legal implications,” as Margaret E. Galey rightly noted (see Galey, , Statement of June 12, 1986 Google Scholar, in Financial Crisis at the United Nations, infra note 15). On the Senate side, Senator Kassebaum offered a new version of her initiative on June 7, 1985 that tied U.S. projected withholding to reform of budget procedures. 131 Cong. Rec. S7793 (daily ed. June 7, 1985). On a roll-call vote, the amendment was adopted by 71 to 13, with 16 not voting. Id. at S7796. The issue of U.S. treaty commitments was raised but not solved, and Senator Pell summarized the problem well when he said:

This is the fourth time that such a floor amendment has been introduced reducing funding for the United Nations and affiliated organizations. I think many of us share the concerns, and are very upset and angered with the way we get kicked around in the United Nations and the problems we have there. But this is not the way to seek to resolve it in my view. I think it would have serious foreign policy implications. It is a matter that never has been considered in any depth by the Foreign Relations Committee, and it should.

Id. at S7794–95.

11 Technically, the amendment limits U.S. contributions to 20% of the budgets of the United Nations and its specialized agencies; coincidentally, this amounts to a 20% cut in the UN regular budget.

12 Balanced Budget and Emergency Deficit Control Act of 1985, Pub. L. No. 99–177, 99 Stat. 1037 (codified principally at 2 U.S.C. §901 (Supp. Ill 1985)), popularly known as the “Gramm-Rudman-Hollings Act,” which is intended to eliminate the federal budget deficit by setting a maximum deficit amount for federal spending for each of the fiscal years 1986 through 1991 (progressively reducing the deficit amount to zero in 1991). The ruling of the Supreme Court in Bowsher v. Synar, 106 S.Ct. 318 (1986), had no impact on the appropriations for international organizations, which under the legislation are subject to a 4.3% sequestration for FY 1986. “The United Nations is not immune from these austerities.” See Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations for 1987: Hearings Before a Subcomm. of the House Comm. on Appropriations, 99th Cong., 2d Sess. 953 (1986) (Statement of Alan L. Keyes, Assistant Secretary of State for International Organization Affairs). See also Impact of Gramm-Rudman-Hollings on U.S. Contributions to International Organizations: Hearing Before the Subcomm. on Human Rights and International Organizations and the Subcomm. on International Operations of the House Comm. on Foreign Affairs, 99th Cong., 2d Sess. 49–57 (1986).

13 Foreign Relations Authorization Act, Fiscal Years 1986 and 1987, §151, Pub. L. No. 99– 93, 99 Stat. 405, 428 (approved Aug. 16, 1985) (codified at 22 U.S.C. §287e note (Supp. III 1985)).

14 See Schermers, H., International Institutional Law 494–95, §883 (1980)Google Scholar.

15 In 1986 the American Society of International Law sponsored several meetings on the financial crisis at the United Nations. The proceedings are briefly summarized in ASIL Newsletter, May–July 1986, at 1–3, and reprinted in Financial Crisis at the United Nations: International Law and United States Withholding of Payments to International Organizations (mimeo 1986). See also Heritage Foundation, Backgrounder, No. 536, Sept. 26, 1986 (on its United Nations Assessment Project Study, “The Legal Case for Cutting U.S. Funding for the United Nations”); Nelson, , International Law and U.S. Withholding of Payments to International Organizations, 80 AJIL 973 (1986)CrossRefGoogle Scholar. The author would like to thank Paul C. Szasz for the outline of Legal Aspects of U.S. Non–Payment of Assessed Contributions to the UN, a talk delivered to Prof. George Sherry’s seminar (Oct. 7, 1986).

16 Schachter, , Legal Problems, 1963–1964 Ann. Rev. UN Aff. 118, 121–22 Google Scholar.

17 As Henry G. Schermers put it: “It is difficult to establish an obligation to contribute to illegal expenditure. It is equally hard to accept that each State may subjectively decide what will constitute illegal expenditure.” H. Schermers, supra note 14, at 495, §884.

18 See, e.g., ASIL Newsletter, May–July 1986, at 1–3 (various views expressed at meetings of June 12 and 20). U.S. foreign-policy makers are embarrassed and perhaps confused about the legality of withholdings from the regular UN budget. See statement of Senator Pell, supra note 10. Margaret E. Galey hinted that during the course of the past few years, the administration has deliberately let confusion grow in Congress:

In the past the Administration used to come up to the Hill and fight amendments that would violate our legal obligations to the UN. They would work very hard, they would have teams of people up here working to put such amendments down, but we haven’t seen that lately. In the last year the Administration has given us no clear signal as to whether they oppose, fundamentally, these amendments.

See Galey, Statement of June 12, 1986, supra note 10.

19 Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), 1962 ICJ Rep. 151 (Advisory Opinion of July 20) [hereinafter Certain Expenses]. The Court clearly framed the scope of the question put to it, as follows:

Although the Court will examine Article 17 in itself and in its relation to the rest of the Charter, it should be noted that at least three separate questions might arise in the interpretation of paragraph 2 of this Article. One question is that of identifying what are “the expenses of the Organization”; a second question might concern apportionment by the General Assembly; while a third question might involve the interpretation of the phrase “shall be borne by the Members”. It is the second and third questions which directly involve “the financial obligations of the Members”, but it is only the first question which is posed by the request for the advisory opinion. The question put to the Court has to do with a moment logically anterior to apportionment, just as a question of apportionment would be anterior to a question of Members’ obligation to pay.

Id. at 157–58 (emphasis added).

20 Id. at 168.

21 Article 5 of the Vienna Convention provides: “The present Convention applies to any treaty which is the constituent instrument of an international organization. . . without prejudice to any relevant rules of the organization.” Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, UNTS Regis. No. 18,232, UN Doc. A/CONF.39/27 (1969), reprinted in 63 AJIL 875 (1969), 8 ILM 679 (1969).

22 See Zoller, E., Peacetime Unilateral Remedies: An Analysis of Countermeasures 28–31 (1984)Google Scholar [hereinafter Countermeasures], and Enforcing International Law Through U.S. Legislation 23–30 (1985).

23 U.S. General Accounting Office, Report to the Congress: Actions Recommended to Alleviate Serious Financial Problems Facing United Nations 11 (1976) (emphasis added).

24 1983 House Hearings, supra note 10, at 54 (emphasis added).

25 U.S. Policy in the United Nations: Hearings and Markup Before the House Comm. on Foreign Affairs and its Subcomms. on Human Rights and International Organizations, and on International Operations, 99th Cong., 1st Sess. 58 (1985) (emphasis added) [hereinafter 1985 House Hearings].

26 131 Cong. Rec H2813 (daily ed. May 2, 1985). In fairness, the only reason why these countries have not lost their vote is that their cumulative withholdings have not been sufficient for the Article 19 penalty to be applied.

27 See H. Schermers, supra note 14, at 88, §133.

28 See De Visscher, C., Les Effectivités du droit International Public 74 (1967)Google Scholar; 1 Rousseau, C., Droit International Public 217–18, para. 193 (1970)Google Scholar.

29 See Brierly, , Some Considerations on the Obsolescence of Treaties, 11 Grotius Soc’y Transactions 11–20, especially at 15 (1925)Google Scholar; and infra pt. III.

30 H. Schermers, supra note 14, at 88, §133 (footnotes omitted).

31 Franck, T., Nation Against Nation—What Happened to the U.N. Dream and What the U.S. Can Do About It 259 (1985)Google Scholar.

32 Id.

33 See, in particular, the cautious, but suggestive, reference made by Thomas M. Franck, id. at 86, to the possibility that in 1965 the Soviet Union may have won “an effective ‘right’ not to pay” (emphasis added).

34 Art. 38, Draft articles on the law of treaties adopted by the International Law Commission at its eighteenth session, [1966] 2 Y.B. Int’l L. Comm’n 177, 182, UN Doc. A/CN.4/SER.A/1966/Add.1, reprinted in United Nations Conference on the Law of Treaties, Official Records, Documents of the Conference, 7, 55, UN Doc. A/CONF.39/11/Add.2 (1971) [hereinafter Vienna Documents].

35 See Vienna Documents, supra note 34, at 158.

36 The distinction was made by the International Court of Justice in Interpretation of Peace Treaties (second phase), 1950 ICJ Rep. 221, 229 (Advisory Opinion of July 18).

37 See UN Doc. A/AC.121/PV.15, at 8–10 (1965), reprinted in 60 AJIL 106 (1966). See also UN Doc. A/5916/Add.1 (1965), 19 UN GAOR Annex 21, at 86.

38 See, e.g., the oral statement of Abram Chayes in 1962 ICJ Pleadings (Certain Expenses of the United Nations) 414: “If the Assembly has power under Article 17 to impose binding financial obligations for all expenditures lawfully incurred,” he said, “and if it is granted that the Assembly intended to exercise that power, then the only argument that remains against the binding character of the assessments is that they were not levied to cover expenditures lawfully incurred” (emphasis in the text); or id. at 424: “[T]he distinction between administrative and operational expenses . . . is unwarranted in the language or history of the Charter and would be unworkable in practice.” See also the Department of State reference aid of January 1979, 1979 U.S. Digest, supra note 2, at 229: “The treaties make clear that each nation is obligated to make its payments in the entire amount of the assessments finally decided upon and without placing conditions on the use of that money.”

39 See 25 ILM 482 (1986).

40 It must be borne in mind that Article 19 does not come into play with respect to the totality of the expenses of the Organization, and in particular the expense of certain peacekeeping operations since some of these expenses were separated from the normal budget of the Organization. Today, however, only UNFICVP is funded voluntarily. UNDOF and UNIFIL (and formerly UNEF II) are funded by assessed contributions under Article 17(2) of the Charter, though according to a different scale of assessment from that for the regular budget. See U.S. Dep’t of State, Pub. No. 9507, Thirty-Fourth Report to the Congress on United States Contributions to International Organizations (F.Y. 1985), at 12–13, 16–17 (1986).

41 See Repertory of Practice of United Nations Organs Supp. (No. 4), vol. 1 at 232– 33, paras. 5–12 (UN Pub. No. E.80.V.13, 1982). See also Ciobanu, , Financial Obligations of States under Article 19 of the U.N. Charter, 5 Quaderni Della Rivista di Diritto Internazionale 47–75 (1973)Google Scholar.

42 1968 UN Jurid. Y.B. 186; 1974 id. at 156.

43 1968 UN Jurid. Y.B. at 187, para. 6.

44 Id., para. 10; 1974 UN JURID. Y.B. at 156, para. 1.

45 See UN Doc. A/7237 (1968), 23 UN GAOR Supp. (No. 10A) at 6, UN Doc. A/7210/Add.1 (1969); UN Doc. A/C.5/33/SR.4–6, 8 and 10 (1978).

46 See, e.g., for the 23d session of the General Assembly: UN Doc. A/7237, supra note 45; for the 28th session, UN Docs. A/9157 and Adds. 1–2, A/PV.2117 and A/PV.2131, paras. 68–70 (1973); for the 6th Special Session, UN Docs. A/9547 and A/PV.2207 (1974); for the 31st session, UN Docs. A/31/219 and A/31/PV.1, paras. 41–43 (1976); and for the 32d session, UN Docs. A/32/PV.1, paras. 16–18, and A/32/224/Add.1 (1977).

47 1962 ICJ Rep. at 159 and 161.

48 For a French view, see Schricke, Article 19, in La Charte des Nations Unies 399, 405 (J. P. Cot & A. Pellet eds. 1985).

49 Draft articles, supra note 34, [1966] 2 Y.B. Int’l L. Comm’n at 237 (emphasis added).

50 Vamvoukos, A., Termination of Treaties in International Law: The Doctrines of Rebus sic Stantibus and Desuetude 204 (1985)Google Scholar. See also infra pt. III.

51 See Gold, J., The “Dispensing” and “Suspending” Powers of International Organizations, 19 Neth. Int’l L. Rev. 169, 189 (1972)Google Scholar, reprinted in Legal and Institutional Aspects of the International Monetary System: Selected Essays 352, 375 (1979).

52 See Sohn, L., Cases on United Nations Law 799–807 (1967)Google Scholar.

53 See Financial problems of the United Nations, 1975 UN Y.B. 953.

54 See Statement of President Reagan, supra note 6.

55 See Statement of Senator Ford, 131 Cong. Rec. S7794 (daily ed. June 7, 1985).

56 See, e.g., for alleged departures from the law of the United Nations endorsed by the Secretariat, Meron, T., The United Nations Secretariat 77 (1977)Google Scholar; and by the General Assembly, Gross, On the Degradation of the Constitutional Environment of the United Nations, 77 AJIL 569 (1983).

57 See supra note 37 and accompanying text.

58 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), 1971 ICJ Rep. 16, 47, para. 94 (Advisory Opinion of June 21) [hereinafter Namibia].

59 Art. 60(2), Vienna Convention on the Law of Treaties, supra note 21.

60 Draft articles, supra note 34, [1966] 2 Y.B. Int’l L. Comm’n at 255, para. 10.

61 United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 ICJ Rep. 3, 40, para. 86 (Judgment of May 24). See also E. Zoller, Countermeasures, supra note 22, at 92; Simma, , Self-Contained Regimes, 26 Neth. Y.B. Int’l L. 111 (1985)CrossRefGoogle Scholar.

62 1980 ICJ Rep. at 40, para. 86.

63 Case concerning the Air Service Agreement of 27 March 1946 between the United States of America and France, 18 R. Int’l Arb. Awards 417, 443, para. 81 (1978) [hereinafter Air Service Agreement].

64 Affaire du Lac Lanoux (Spain/Fr.), 12 R. Int’l Arb. Awards 285, 310, para. 16 (1957).

65 Air Service Agreement, supra note 63, 18 R. Int’l Arb. Awards at 443, para. 81.

66 See Gross, L., States as Organs of International Law and the Problem of Autointerpretalion, in Law and Politics in the World Community 59 (Lipsky, G. A. ed. 1953)Google Scholar, reprinted in 1 Essays on International Law and Organization 367 (1984).

67 Air Service Agreement, supra note 63, 18 R. Int’l Arb. Awards at 443, para. 8 1 .

68 See, e.g., Arts. 164–188, Treaty Establishing the European Economic Community, Jan. 1, 1958, 298UNTS 11.

69 Ciobanu, D., Preliminary Objections Related to the Jurisdiction of the United Nations Political Organs 174 (1975)Google Scholar.

70 See Reuter, P., Introduction au droit des Traités 160, para. 283 (1985)Google Scholar.

71 There is no item in the UN budget covering defaults in payment, and when there are gaps because of refusal to pay, the United Nations is compelled to solicit funds elsewhere.

72 The concept of “interdependent treaty” is also embodied in Article 41(1)(b)(ii) of the Vienna Convention, supra note 21, the effect of which is to preclude some parties to a multilateral treaty from modifying it by an agreement inter se where the modification in question is not prohibited by the treaty.

73 See H. Schermers, supra note 14, at 475–89, §§848–73.

74 Second Report on the Law of Treaties by G. Fitzmaurice, UN Doc. A/CN.4/107 (1957), reprinted in [1957] 2 Y.B. Int’l L. Comm’n 16, 31 (Art. 19), and 54–55 (commentary), UN Doc. A/CN.4/SER.A/1957/Add.1.

75 Second Report on the Law of Treaties by Sir Humphrey Waldock, UN Doc. A/CN.4/156 and Adds. 1–3 (1963), reprinted in [1963] 2 Y.B. Int’l L. Comm’n 36, 73, UN Doc. A/CN.4/SER. A/1963/Add. 1.

76 Id. at 77, para. 19.

77 [1963] 1 Y.B. Int’l L. Comm’n at 122, para. 2, UN Doc. A/CN.4/SER.A/1963.

78 The Social Contract: Essays by Locke, Hume and Rousseau 193 (intr. E. Barker 1947).

79 Id. at 194.

80 South West Africa (Ethiopia v. S. Afr.; Liberia v. S. Afr.), Preliminary Objections, 1962 ICJ Rep. 319, 330 (Judgment of Dec. 21).

81 Namibia, supra note 58, 1971 ICJ Rep. at 47, paras. 94–95.

82 See Vienna Convention on the Law of Treaties Between States and International Organizations or Between International Organizations, done Mar. 21, 1986, UN Doc. A/CONF. 129/15, reprinted in 25 ILM 543 (1986).

83 Reparation for Injuries Suffered in the Service of the United Nations, 1949 ICJ Rep. 174, 178 (Advisory Opinion of Apr. 11) (emphasis added) [hereinafter Reparation].

84 Id. at 179 (emphasis added).

85 See P. Reuter, supra note 70, at 96, para. 167.

86 With respect to the diversity that exists among international organizations, the substance of “international institutional law” is probably not especially homogeneous. While aware of this problem, Henry G. Schermers nevertheless asserts:

[A]ll public international organizations have much in common. . . . Definitions in constitutional and procedural matters used by one organization will often be adopted by others. . . .

. . . Most of the general constitutional problems which the organizations meet outside their technical fields of operation are comparable and the solution found by one can often be fruitful for others. . . .

. . . It seems useful, therefore, to make a systematic study of the institutional problems which arise or may arise in all or most international organizations. The branch of law concentrating on such problems may be called “international institutional law”.

H. Schermers, supra note 14, at 1–2, §§1–2.

87 See, in particular, 1983 House Hearings, supra note 10, and 1985 House Hearings, supra note 25, passim.

88 See 1985 House Hearings, supra note 25, at 101.

89 See The United States and the United Nations: Hearings Before the Senate Coram, on Foreign Relations, 94th Cong., 1st Sess. 1–332 (1975).

90 GA Res. 377 (V), 5 UN GAOR Supp. (No. 20) at 10, UN Doc. A/1775 (1950).

91 See Repertory of Practice of United Nations Organs Supp. (No. 3), vol. 1 at 371–81, especially paras. 61–65 (Art. 17(2)), and 396–99, especially paras. 15–19 and 22 (Art. 19) (UN Pub. No. E.72.V.2, 1972).

92 Article 62 of the Vienna Convention, supra note 21, provides:

1. A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless:

(a) the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and

(b) the effect of the change is radically to transform the extent of obligations still to be performed under the treaty.

2. A fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty:

(a) if the treaty establishes a boundary; or

(b) if the fundamental change is the result of a breach by the party invoking it either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty.

3. If, under the foregoing paragraphs, a party may invoke a fundamental change of circumstances as a ground for terminating or withdrawing from a treaty it may also invoke the change as a ground for suspending the operation of the treaty.

93 Fisheries Jurisdiction (UK v. Ice.), Jurisdiction of the Court, 1973 ICJ Rep. 3, 18, para. 36 (Judgment of Feb. 2).

94 For similar views, see H. Schermers, supra note 14, at 71, § 105(a)(5).

95 See Draft articles, supra note 34, [1966] 2 Y.B. Int’l L. Comm’n at 259, para. 9.

96 Vienna Documents, supra note 34, at 183, para. 538. See also Draft articles, supra note 34, [1966] 2 Y.B. Int’l L. Comm’n at 256–60.

97 See United Nations Conference on the Law of Treaties, Official Records, First Session 381, para. 29, UN Doc. A/CONF.39/11 (1969) (statement made by Sir Humphrey Waldock, May 11, 1968) [hereinafter Vienna First Session].

98 UN Doc. A/CONF.39/C.1/L.333 (1968), in Vienna Documents, supra note 34, at 183, 184, para. 540.

99 See Vienna First Session, supra note 97, at 382, para. 35. See also id. at 389, para. 29.

100 See id. at 381, para. 30.

101 See, in particular, Capotorti, , L’extinction et la suspension des traites, 134 Recueil des Cours 417, 548 (1971 III)Google Scholar.

102 Art. 44(3), Vienna Convention on the Law of Treaties, supra note 21.

103 Sinclair, I., The Vienna Convention on the Law of Treaties 166 (1984)Google Scholar.

104 Certain Expenses, supra note 19, 1962 ICJ Rep. at 213 (Fitzmaurice, J., sep. op.).

105 It must be borne in mind that, despite the absence of any withdrawal provision in the Charter, the San Francisco Conference eventually agreed that a member state must be free in the last resort, “because of exceptional circumstances,” to withdraw from the Organization. See Docs. 1210, 1179 (1) and 1178 (2), 1 UNCIO Docs. 612, 619–20; 6 id. at 245, 249; and 7 id. at 324, 327–29, respectively (1945).

106 Report of the Secretary-General on the Work of the Organization, UN Doc. A/41/1, at 3 (1986).

107 See the interesting statement made by Jeane J. Kirkpatrick, U.S. Permanent Representative to the United Nations: “I do not suggest the United States should take lightly the obligation to pay its assessed share of the budget. This is a serious, but not, in my opinion, an absolute obligation.” 1983 House Hearings, supra note 10, at 54 (Statement of Oct. 3).

108 In the Tacna-Arica Question (Chile v. Peru), President Coolidge held: “A finding of the existence of bad faith should be supported not by disputable inferences but by clear and convincing evidence which compels such a conclusion.” 2 R. Int’l Arb. Awards 921, 930 (1925).

109 See supra note 37 and accompanying text.

110 Certain Expenses, supra note 19, 1962 ICJ Rep. at 203 (Fitzmaurice, J., sep. op.).

111 1971 ICJ Rep. at 334 (Gros, J., dissenting).

112 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14, 100, para. 188 (Judgment of June 27).

113 This language is found in the translation of the dissenting opinion of Judge Gros in the Namibia opinion, supra note 58, 1971 ICJ Rep. at 334. The French reads as follows: “rendue nécessaire par la nécessité.”

114 Reparation, supra note 83, 1949 ICJ Rep. at 179.

115 For such proposals, see, e.g., Sohn, , Due Process in the United Nations, 69 AJIL 620 (1975)CrossRefGoogle Scholar.

116 See Combacau, , Le Droit international: bric-à-brac ou système?, 31 Archives de Philosophie du Droit 85, 90 (1986)Google Scholar.

117 See Bourquin, , Règies générates du droit de la paix, 35 Recueil des Cours 101 (1931 I)Google Scholar.

118 See supra note 37 and accompanying text.

119 1949 ICJ Rep. at 183.

120 This language is that of the so–called Goldberg corollary, explained by Jeane J. Kirkpatrick as follows:

Justice Goldberg, in response to a recent inquiry from me—at the time, the Law of the Sea Preparatory Conference [Commission] was under consideration—wrote that it was his considered conclusion that:

. . . there can be no question that under the Goldberg Reservation the U.S. reserves the right to withhold assessments for U.N. activities which, in our opinion, do not serve our national purpose.

I may say that is a Goldberg corollary, not a Kirkpatrick corollary.

1983 House Hearings, supra note 10, at 55 (Statement of Oct. 3).

121 Resolution 41/213 mainly endorses recommendations made by an intergovernmental committee of experts (the Group of 18) that was created by Resolution 40/237 and has submitted 71 recommendations to improve the administrative and financial functioning of the Organization. See Report of the Group of High-Level Intergovernmental Experts to Review the Efficiency of the Administrative and Financial Functioning of the United Nations, 41 UN GAOR Supp. (No. 49), UN Doc. A / 4 1 / 4 9 (1986). Both Resolution 41/213 and the report are reprinted in 26ILM 138, 145(1987).

122 Footnotes omitted.

123 Statement of Sen. Kassebaum, Nancy L., Wash. Post, Mar. 20, 1987, at A27 Google Scholar, col. 1. See also N.Y. Times, Jan. 1, 1987, at A1, cols. 4, 5.

124 Statement made by the President of the General Assembly at the 102d plenary meeting, Ann. II to GA Res. 41/213, supra note 121.

125 The legal opinion may also be found in UN Doc. A/41/PV.102, at 7–8 (1986).