320/11–2851: Telegram

The Acting Secretary of State to the United States Representative at the United Nations (Austin)

priority

Gadel 277. For Fisher1 from Tate.2 Following are views Legal Adviser’s office here re Article 17 UN Charter:3

Language Paragraph 2 that “expenses of the Organization shall be borne by the Members as apportioned by the General Assembly” clearly mandatory and imposes treaty obligation upon US to pay contribution as apportioned by GA. (In this connection note that if US is in arrears in its financial contribution it loses vote in GA under Article 19 UN Charter. Under Article 19 Member in arrears may vote only if GA satisfied failure pay due conditions beyond Members’ control.)

Check of history US ratification UN Charter shows no controversy or discussion Article 17 in Senate hearings or debate. Senate Foreign Relations Committee report recommending ratification UN Charter noted GA will have function to approve budgets and concluded on page 15:

“The question of our membership in an international organization to preserve peace has been debated throughout our country and in this Congress as fully as any public issue in our history has ever been discussed. The committee feels that the people and the members of the Senate understand clearly the consequences and the requirements of our membership in the United Nations and that they are prepared to undertake the responsibilities of membership in order to enjoy the privileges which that membership may ultimately bring in the form of world security. The committee is convinced that participation in the United Nations is in accordance with our national interests, and that our contributions to the United Nations will be repaid many times.”

Clear support found in legislative history Charter that Article 17(2) imposes obligation. Committee One of Commission Two of UNCIO4 in recommending sanction appearing Article 19 stated purpose [Page 176]was “to impose a penalty of loss of voting rights in the General Assembly in the event that member states fail to fulfill their financial obligation (underscore added) to the International Organization.” (Eight UNCIO Doc. 364.)

We feel therefore that UN Charter imposes clear treaty obligation upon US to pay its contribution to UN as fixed by GA. Failure to do so would not only subject US to loss of vote under Article 19 but would be contrary to American tradition of respect for treaties since earliest days of republic. In 1796 Supreme Court in case of Ware v. Hylton enforcing Treaty of Peace with Great Britain enunciated principle respect for treaties. In 1931 Chief Justice Hughes in opinion enforcing Consular Convention with Italy reaffirmed principle. Santovincenzo v. Egan, 284 U.S. 30. Hughes said in that case “As treaties are contracts between independent nations their words are to be taken in their ordinary meaning ‘as understood in the public law of nations’.”

Internationally in North Atlantic Fisheries Arbitration between Great Britain and US in 1910 arbitral tribunal said “every State has to execute the obligations incurred by treaty.”

Distinguished American authorities have consistently upheld principle of respect for treaties, including international legal obligation of US to pay money if so required by treaty.

In 1833 Secretary of State Livingston observed “The Government of the United States presumes that whenever a treaty has been duly concluded and ratified by the acknowledged authorities competent for that purpose, an obligation is thereby imposed upon each and every department of the government to carry it into complete effect, according to its terms, and that on the performance of this obligation consists the due observance of good faith among nations. (2 Wharton, International Law Digest, 1887, p. 67.)”

Professor Hyde also comments “It is not unreasonable to assert that when, for example, the United States concludes a treaty contemplating payment by it for the cession to itself of territory, the nation incurs a legal obligation to make payment, and incidentally agrees that the Congress will not fail to make the requisite appropriation.” [Tate.]

Webb
  1. Adrian S. Fisher, Legal Adviser of the Department of State, member of the Advisory Staff of the U.S. Delegation to the Sixth Regular Session of the General Assembly of the United Nations.
  2. Jack B. Tate, Deputy Legal Adviser of the Department of State.
  3. Article 17 of the Charter of the United Nations reads:

    • “1. The General Assembly shall consider and approve the budget of the Organization.
    • “2. The expenses of the Organization shall be borne by the Members as apportioned by the General Assembly.
    • “3. The General Assembly shall consider and approve any financial and budgetary arrangements with specialized agencies referred to in Article 57 and shall examine the administrative budgets of such specialized agencies with a view to making recommendations to the agencies concerned.”

  4. The United Nations Conference on International Organization, held at San Francisco, April 25–June 26, 1945. For text of the Charter of the United Nations, formulated by the Conference, see 59 Stat. (pt. 2) 1031, or Department of State Treaty Series 993.