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Un v. Ibrd: A Dilemma of Functionalism

Published online by Cambridge University Press:  22 May 2009

Samuel A. Bleicher
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Extract

In its efforts to penalize Portugal and the Republic of South Africa for their colonial and apartheid policies the General Assembly has called upon the specialized agencies to deny to those states the benefits of membership in their respective organizations. The International Bank for Reconstruction and Development (IBRD) has refused to do so on the ground that it is a nonpolitical, functional organization without authority to impose sanctions upon members for conduct unrelated to its purposes. The pointed exchange of views between the United Nations and die World Bank on this question illustrates the serious problem of the proper relationship between the United Nations and the specialized agencies and exposes one of the difficulties of the functionalist strategy for world order. An appreciation of the significance of this dispute requires an examination of its history, the legal context in which it arises, and its relationship to the theory of functionalism.

Type
Articles
Information
International Organization , Volume 24 , Issue 1 , Winter 1970 , pp. 31 - 47
Copyright
Copyright © The IO Foundation 1970

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References

1 Much, but not all, of the relevant history has been collected by the United Nations Legal Counsel for inclusion in his memorandum (discussed below) which can be found in UN Document A/6825 (September 15, 1967). Unless otherwise indicated, correspondence between the UN and IBRD referred to is either found or cited there.

2 General Assembly Resolution 1654(XVI), November 27, 1961, paragraph 4. This Special Committee on the Situation with Regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples is known as the Special Committee of Twenty-Four.

3 Ibid., paragraph 8:

Requeststhe Trusteeship Council, the Committee on Information from Non-Self-Governing Territories and the specialized agencies concerned to assist the Special Committee in its work within their respective fields.…

4 UN Document A/AC.109/SR.277 (August 24, 1964).

5 UN Document A/AC.109/124 and Corr.i (June 10, 1965).

6 General Assembly Resolution 21O7(XX), December 21, 1965, paragraph 9:

9. Appeals to all specialized agencies, in particular to the International Bank for Reconstruction and Development and the International Monetary Fund, to refrain from granting Portugal any financial, economic or technical assistance so long as the Government of Portugal fails to implement General Assembly resolution 1514(XV).…

7 General Assembly Resolution 2054(XX), December 15, 1965, paragraph 10.

8 General Assembly Resolution 2105(XX), December 20, 1965, paragraph 11.

9 Cited in General Assembly Official Records, Fourth Committee (21st session), 1645th meeting, 11 28, 1966, p. 318Google Scholar.

10 With these new commitments the international bank's net loans to Portugal rose to $55.9 million of which as much as 25 million dollars was then undisbursed. Outstanding loans to South Africa rose to 47.3 million dollars.

11 “Agreement between the United Nations and the International Bank for Reconstruction and Development, Approved by the General Assembly on November 15, 1947,” (hereafter referred to as the ”relationship agreement”) article IV, paragraphs 1 and 2:

1. The United Nations and die Bank shall consult together and exchange views on matters of mutual interest.

2. Neither organization, nor any of their subsidiary bodies, will present any formal recommendations to die other widiout reasonable prior consultation with regard thereto. Any formal recommendations made by either organization after such consultation will be considered as soon as possible by die appropriate organ of the other.

UN Document A/349 (September 2, 1947), reprinted in International Organization, 02 1948 (Vol. 2, No. 1), pp. 198–201CrossRefGoogle Scholar.

12 See “International Bank for Reconstruction and Development: Articles of Agreement between the United States of America and Other Powers,” December 7, 1944, in U.S. Treaties and Other International Acts Series, No. 1502 (Department of State Publication 2511) (Washington: United States Government Printing Office, 1946)Google Scholar. Hereafter cited as “articles of agreement.”

13 General Assembly Official Records, Fourth Committee (21st session), 1653rd meeting, December 3, 1966, pp. 382–388.

14 Ibid., p. 383.

15 General Assembly Resolution 2184(XXI), December 12, 1966.

16 General Assembly Resolution 2202(XXI), December 16, 1966, paragraph 6(d).

17 UN Document A/6825 (September 15, 1966).

18 General Assembly Resolution 2270(XXII), November 17, 1967.

19 General Assembly Resolution 2307(XXII), December 13, 1967.

20 General Assembly Resolutions 2311(XXII), December 14, 1967, and 2326(XXII), December 16, 1967.

21 General Assembly Resolution 2270(XXII), November 17, 1967, paragraph 13:

13. Appeals once again to all the specialized agencies, in particular to the International Bank for Reconstruction and Development and the International Monetary Fund, to refrain from granting Portugal any financial, economic or technical assistance as long as the Government of Portugal fails to implement General Assembly resolution 1514 (XV).…

22 General Assembly Resolution 2307(XXII), December 13, 1967, paragraph 7:

7. Reiterates its request to the International Bank for Reconstruction and Development to deny financial, economic and technical assistance to the Government of South Africa and, in this connection, expresses the hope that the Bank will stand by its assurance that it will avoid any action that might run counter to the fulfilment of the great purposes of the United Nations.…

23 UN Document A/AC.109/292 (June 26, 1968).

24 General Assembly Resolution 2426(XXIII), December 18, 1968, paragraph 5. The bank by a letter dated December 17, 1968, UN Document A/7446 (reprinted in International Legal Materials: Current Documents, 03 1969 [Vol. 8, No. 2 ], p. 444)CrossRefGoogle Scholar explained that it could not legally “act in contravention of formal loan agreements.”

25 U.S. Treaties and Other International Acts Series, No. 1502, pp. 5–6.

26 Ibid., p. 15.

27 International Organization, Vol. 2, No. 1, p. 198.

28 The United Nations recognizes that the action to be taken by the Bank on any loan is a matter to be determined by the independent exercise of the Bank's own judgment in accordance with the Bank's Articles of Agreement. The United Nations recognizes, therefore, diat it would be sound policy to refrain from making recommendations to the Bank with respect to particular loans or with respect to terms or conditions of financing by the Bank. The Bank recognizes that the United Nations and its organs may appropriately make recommendations with respect to the technical aspects of reconstruction or development plans, programmes or projects.

Article IV, paragraph 3, “relationship agreement,” International Organisation, Vol. 2, No. 1, p. 199.

29 The Bank takes note of the obligation assumed, under paragraph 2 of Article 48 of the United Nations Charter, by such of its members as are also Members of the United Nations, to carry out the decisions of the Security Council through their action in the appropriate specialized agencies of which they are members, and will, in the conduct of its activities, have due regard for decisions of the Security Council under Articles 41 and 42 of the United Nations Charter.

Article VI, paragraph 1, ibid., pp. 199–200. For a suggestion mat this language does not even place a binding obligation on joint members see Aufricht, Hans, “Supersession of Treaties in International Law,” Cornell Law Quarterly, Summer 1952 (Vol. 37, No. 2), pp. 691–695Google Scholar. Mr. Aufricht was a member of the legal staff of the International Monetary Fund (IMF) at the time that article was published.

30 See footnote 11.

31 2. Representatives of the Bank shall be entitled to attend meetings of the General Assembly of the United Nations for purposes of consultation.

3. Representatives of the Bank shall be entitled to attend, and to participate without vote in, meetings of the committees of the General Assembly, meetings of the Economic and Social Council, of the Trusteeship Council and of dieir respective subsidiary bodies, dealing with matters in which the Bank has an interest.

Article II, paragraphs 2 and 3, “relationship agreement,” International Organization, Vol. 2, No. 1, p. 199.

32 U.S. Treaties and Other International Acts Series, No. 1502.

33 Draft section 11, from Proceedings and Documents of the United Nations Monetary and Financial Conference, 1948 (Vol. I), p. 202Google Scholar:

Section 11. Political Activity Prohibited

The Bank and its officers shall scrupulously avoid interference in the political affairs of any member. This provision shall not limit the right of an officer of the Bank to participate in the political life of his own country.

The Bank shall not be influenced in its decisions with respect to applications for loans by the political character [of the government] of the member concerned with the loan. Only economic considerations shall be relevant to the Bank's decisions.

The Bank, acting with the strictest impartiality, shall pay particular regard, both in selecting the place of its borrowing and its lending to maintaining the equilibrium of the international balance of payments of members.

The bracketed words, omitted without explanation from the final articles were invoked by the Secretariat memorandum to clarify the scope of the phrase “political character.”

34 See, e.g., General Assembly Resolutions 2107(XX), December 21, 1965, and 2184(XXI), December 12, 1966, and Security Council Resolutions 191 of June 18, 1964, and 218 of November 23, 1965.

35 See footnote 1.

36 By contrast, as the bank pointed out, relationship agreements between the United Nations and the International Labor Organization (ILO), the Food and Agriculture Organization (FAO), the United Nations Educational, Scientific and Cultural Organization (UNESCO), and the International Civil Aviation Organization (ICAO) provide that the agencies agree:

to co-operate with the Economic and Social Council in furnishing such information and rendering such assistance to the Security Council as that Council may request including assistance in carrying out decisions of the Security Council for the maintenance or restoration of international peace and security.

Article VI, “Agreement between the United Nations and the International Labour Organization,” United Nations Treaty Series: Treaties and International Agreements Registered or Filed and Recorded with the Secretariat of the United Nations, 1946–947 (Vol. 1, No. 9), pp. 192–194.

37 United States Treasury, Questions and Answers on the Bank for Reconstruction and Development (06 10, 1944), p. 74Google Scholar.

38 See footnote 12.

39 General Assembly Official Records (6th session), Supplement No. 13, UN Document A/1891, p. 19.

40 The Security Council, in Resolutions 191 (1964) of June 18, 1964, and 218 (1965) of November 23, 1965. has found these policies to be in violation of the principles of the Charter of the United Nations as has the General Assembly. On the legal significance of such resolutions see the dissenting opinions of Judges Paul Tanaka, Philip Jessup, and Padilla Nervo, South West Africa Cases, Second Phase, Judgment, I.C.J. Reports 1966, pp. 284–316, 323, 455, and Bleicher, Samuel A., “The Legal Significance of Re-citation of General Assembly Resolutions,” American Journal of International Law, 07 1969 (Vol. 63, No. 3), pp. 444–478CrossRefGoogle Scholar, and sources cited there.

41 Security Council Resolution 218 (1965) of November 23, 1965, pertaining to territories under Portuguese administration:

1. Affirmsthat the situation resulting from the policies of Portugal both as regards to the African population of its colonies and the neighboring States seriously disturbs international peace and security;

6. Requestsall States to refrain forthwith from offering the Portuguese Government any assistance which would enable it to continue its repression of the people of the Territories under its administration. …

Similar language is found in Security Council Resolution 180 (1963) of July 31, 1963. Security Council Resolution 191 (1964) of June 18, 1964, pertaining to the policies of apartheid of the government of the Republic of South Africa:

Convincedthat the situation in South Africa is continuing seriously to disturb international peace and security.…

Similar language is found in Security Council Resolution 182 (1963) of August 7, 1963.

42 Security Council Resolutions 232 (1966) of December 16, 1966, and 253 (1968) of May 29, 1968. Documentation of South Africa's violation of the mandatory sanctions imposed by the resolutions can be found in the Report of die Security Council Committee on Southern Rhodesia, United Nations Document S/8954 (December 30, 1968).

43 Mitrany, David, A Wording Peace System: An Argument for the Functional Development of International Organization (4th ed; London: National Peace Council [by arrangement with the Royal Institute of International Affairs], 1946)Google Scholar.

44 See Goodrich, Lcland M. and Hatnbro, Edvard, Charter of the United Nations: Commentary and Documents (1st ed; Boston: World Peace Foundation, 1946), pp. 38–41 and 194–195Google Scholar, which cites Mitrany.

45 Brief, coherent summary and analysis of the functionalist theory may be found in Piano, Jack C. and Riggs, Robert E., Forging World Order: The Politics of International Organization (New York: Macmillan, 1967), pp. 512–529Google Scholar, and in Claude, Inis L. Jr, Swords into Plowshares: The Problems and Progress of International Organization (3rd rev. ed; New York: Random House, 1964), pp. 344–368Google Scholar. An exhaustive treatment of the theory and its limitations is presented in Haas, Ernst B., Beyond the Nation-State: Ftmctionalism and International Organization (Stanford, Calif: Stanford University Press, 1964)Google Scholar.

47 Walters, F. P., A History of the League of Nations (2 vols; London: Oxford University Press, 1952). P. 760Google Scholar.

47 These cases are collected in Sohn, Louis B., “Expulsion or Forced Withdrawal from an International Organization,” Harvard Law Review, 06 1964 (Vol. 77, No. 8), pp. 1401–1416CrossRefGoogle Scholar.

48 Exclusion of Argentine delegates, International Labor Conference, Record of Proceedings, 27th session (1945), pp. 308–309; Venezuelan delegates, International Labor Conference, Record of Proceedings, 33rd session (1950), pp. 293–302, 396–397Google Scholar.

49 International Labor Conference, Record of Proceedings, 37th session (1954), pp. 432–442Google Scholar.

50 For analysis of the success of specific functional organizations see Sevvell, James Patrick, Functionalism and World Politics: A Study Based on United Nations Programs Financing Economic Development (Princeton, N.J: Princeton University Press, 1966)Google Scholar and Haas (see footnote 45 above).

51 Piano and Riggs, p. 515.

52 The importance of expectations of effectiveness is indicated in Schacter, Oscar, “Towards a Theory of International Obligation,” Virginia Journal of International Law, 04, 1968 (Vol. 8, No. 2), pp. 300–322Google Scholar.

53 Contrasting views on the effectiveness of economic sanctions are found in R. St. MacDonald, J., ”The Resort to Economic Coercion by International Political Organizations,” University of Toronto Law Journal, 1967 (Vol. 17, No. 1), pp. 86–169CrossRefGoogle Scholar, and Taubenfeld, Rita Falk and Taubenfeld, Howard J., ”The ‘Economic Weapon’: The League and the United Nations,” Proceedings of the American Society of International Law, 58th annual meeting, Washington, April 23–25, 1964, pp. 183—205Google Scholar.

54 It may unfortunately be that states will only go to the trouble of reapportioning General Assembly voting power and thinking seriously about the meanings of their decisions after rather than before expectations of United Nations effectiveness have been created.

55 The unwillingness of the Bank to cooperate enthusiastically with the United Nations policies on Portugal and South Africa is of course a reflection of the more relaxed “friendly persuasion” policy followed by the United States and major Western powers who dominate the bank through its weighted voting system and the absence of Communist membership. These states have consistently opposed any United Nations action against Portugal or South Africa other than verbal expressions of disapproval largely on the ground of the predicted ineffectiveness of economic sanctions against them.

56 The existence and scope of the bank's political power is indicated by Kulz, Helmut R., “Further Water Disputes Between India and Pakistan,” International and Comparative Law Quarterly, 07 1969 (Vol. 18, No. 3), p. 738CrossRefGoogle Scholar:

The Bank has other and more effective means to influence India than a political body [the United Nations] or a single power, and the Bank, whose huge investments on the sub-continent are at stake will certainly use these means.…

The Indus Water Treaty was also negotiated under the auspices and sponsorship of the World Bank, which has acted before as an umpire between India and Pakistan.

Kulz admits that the bank would be acting in a way contrary to die probable decision of die United Nations Security Council which he believes would not force the issue. While one can hardly condemn any effort to settle the Ganges River dispute, the use of economic pressure by the bank without the approval of the United Nations raises as many questions as the refusal of the bank to exercise its economic power in support of United Nations action.

57 Riesman, William, “The Role of the Economic Agencies in the Enforcement of International Judgments and Awards: A Functional Approach,” International Organization, Autumn 1965 (Vol. 19, No. 4), pp. 929–947CrossRefGoogle Scholar.

58 Bleicher, Samuel A., “Financing Peacekeeping from IMF and IBRD Income,” Washington Law Review, 06 1967 (Vol. 42, No. 4), pp. 1017–1064Google Scholar.