198. Telegram From the Mission to the United Nations to the Department of State 1
New York, November 16, 1972, 1405Z.
4718. Subj: Legal Aspects of 25 Percent. Ref: USUN 4704.2
- DelOff called on Blaine Sloan, Director of UN General Legal Division 15 Nov, to discuss various legal issues in connection with 25 percent. DelOff reviewed importance US attributes to this effort and significance of success in terms of meaningful US relationship with the UN.
- Sloan agreed that approval by the Fifth Comite of the US proposal requires only a simple majority, citing Rule 127 of the Rules of Procedure: the problem, he said, was in plenary. DelOff noted that what would most concern US would be a ruling by Trepczynski that the US proposal would require two-thirds for adoption because, under Charter Art 18(2), it concerns a “budgetary question”. This would be wrong in view of the GA’s practice to apply the term “budgetary question” to the narrowly delimited area of appropriations proposals. A contrary ruling by the President would place US in an extremely difficult position because, given the prestige and authority of the chair, it might not be possible to put together a simple majority to overturn his ruling. By contrast, we were not so concerned about an unfriendly effort to seek a ruling by the Assembly itself that the question should be regarded as “important” under Art. 18(3); if we have the strong majority we [Page 363]expect on the 25 percent issue, we should also have a majority willing to vote against and defeat such a proposal.
- Sloan said he agreed with the view that recent Assembly practice is to treat “budgetary question” narrowly. He said, however, that he was obliged to point to the fact that the US itself has argued for a far wider application of “budgetary question”, as for example in the decision to establish the capital development fund and many other cases; he also cited the dictum in the records of the 1957 GA following the vote that the proposal had been adopted because it had received “the required two-thirds majority.” (A/PV.705, P. 335) DelOff noted that out of the whole practice of the Assembly this one instance was the only one of a contrary character; as Sloan had observed, we considered it to be an erroneous dictum.
- DelOff explained we would like the Legal Counsel (Stavropoulos) to discuss the matter with Trepczynski at an appropriate time and advise that, assuming a question were raised from the floor of the plenary, the proper course would be for Trepczynski to rule that the res adopted by the Fifth Comite on 25 percent does not involve “a budgetary question” and that consequently only a simple majority is required for its adoption by the Assembly. In response to a question, DelOff replied that the USSR is opposed to the 25 percent effort but added that the Soviets are not, to our knowledge, working actively against us and their opposition is thus somewhat restrained in character. Sloan said that in view of Trepczynski’s allegiances, it might well be that Trepczynski would decline to rule on the question whether the two-thirds majority requirement of Art 18(2) applied and might instead put the question to the Assembly for decision (by majority vote). DelOff said this would not be good enough; we and the Secretary-General have always taken the position that presiding officers are obliged to fulfill their responsibilities by making rulings where the matter is clear. We reiterated that we would like the Secretariat to try to the best of its ability to convince Trepczynski of the rectitude of the position that Art. 18(2) is not applicable. Sloan said he would review the matter and would discuss it with Stavropoulos. DelOff commented that we, too, are looking further into the history of the matter.