[Congressional Record Volume 144, Number 101 (Friday, July 24, 1998)]
[Extensions of Remarks]
[Pages E1437-E1438]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                    U.N. DUES ARE A LEGAL OBLIGATION

                                 ______
                                 

                           HON. LEE HAMILTON

                               of indiana

                    in the house of representatives

                         Friday, July 24, 1998

  Mr. HAMILTON. Mr. Speaker, some observers have argued that we do not 
owe to the United Nations the dues we have been assessed by that 
organization. I would like to set the record straight.
  I recently posed a series of questions to the Department of State 
regarding the nature of our international legal obligations to the 
United Nations. The reply I received to those questions indicates that 
while Congress can refuse to pay the bills we owe, that in no way 
relieves our responsibility to pay those bills.
  I ask permission to include in the Record my correspondence with the 
Department of State on this subject, and encourage my colleagues to 
review it.

                                          Department of State,

                                     Washington, DC, July 8, 1998.
     Hon. Lee H. Hamilton
     House of Representatives
       Dear Mr. Hamilton: Thank you for your letter of May 15, 
     raising several important

[[Page E1438]]

     questions regarding the character and extent of the 
     obligations of the United States under international law to 
     pay amounts assessed by the United Nations.
       The Office of the Legal Adviser has prepared the enclosed 
     document, which responds to your questions.
       Please let us know if we can provide further information.
           Sincerely,

                                               Barbara Larkin,

                                              Assistant Secretary,
                                              Legislative Affairs.
     Enclosure: As stated.


Response to Representative Hamilton's Questions Regarding the Status of 
                United States Dues to the United Nations

       (1) On what basis does the United States owe money to the 
     United Nations?
       In what document does the obligation arise?
       Does Article 17 of the United Nations Charter, which states 
     ``the expenses of the Organization shall be borne by the 
     Members as apportioned by the General Assembly,'' impose a 
     treaty obligation?
       From a legal perspective, how does Congress' power of the 
     purse under the Constitution square with any legal obligation 
     to pay dues to the United Nations?
       When a treaty and a law conflict, which prevails?
       Does the power of Congress to withhold funds release it 
     from treaty obligations to pay dues?
       Does the lack of an enforcement mechanism on the part of 
     the United Nations to compel payment nullify any legal U.S. 
     obligation to pay dues to that institution?
       Answer: The international legal obligation to pay such 
     assessments arises under the United Nations Charter, a treaty 
     made with the advice and consent of the Senate. The Charter 
     is binding on the United States under international law. 
     Article 17(2) of the Charter states that: ``The expenses of 
     the Organization shall be borne by the Members as apportioned 
     by the General Assembly'' (emphasis added). The consistent 
     position of the United States has been that Article 17 
     creates an obligation under international law to pay amounts 
     assessed by the United Nations. While any particular 
     assessment is not itself a treaty, it is made pursuant to 
     treaty (the Charter), and legal obligation to pay it derives 
     from that treaty.
       In the early 1960's, when the former Soviet Union, France 
     and some other States refused to pay assessments for Congo 
     and Mid-East peacekeeping operations, the United States 
     insisted that they had an obligation to do so under 
     international law. The United States at that time said that:
       The language of the provision [Article 17(2)] is mandatory: 
     expenses ``shall be borne.'' (Emphasis added.) Accordingly, 
     the General Assembly's adoption and apportionment of the 
     Organization's expenses create a binding international legal 
     obligation on the part of States Members to pay their 
     assessed shares.
       The history of the drafting of Article 17(2) demonstrates 
     that it was the design of the authors of the Organization's 
     constitution that the membership be legally bound to pay 
     apportioned expenses.
       Written Statement of the United States, at 193, I.C.J. 
     Pleadings, Certain Expenses of the United Nations (Article 
     17, paragraph 2, of the Chapter) (1962). When the 
     International Court of Justice gave an advisory opinion 
     affirming the international legal obligation to pay such 
     assessments in the Certain Assessments case, Congress passed 
     a resolution expressing its satisfaction with the 
     International Court of Justice's opinion, 22 U.S.C. 287k, and 
     a resolution calling on the United Nations to take 
     ``immediate steps to give effect'' to the Court's opinion. 22 
     U.S.C. 2871.
       This has remained the consistent legal position of the 
     United States and has been reaffirmed by successive 
     administrations. For example, a 1978 published opinion of the 
     State Department's Legal Adviser reiterated that Article 
     17(2) of the United Nations Charter imposes a legally binding 
     obligation on Member States to pay the amount assessed to 
     them by the General Assembly. Nash, Digest of United States 
     Practice in International Law 1979, 225 (1979).
       While nothing in the Constitution compels the Congress to 
     refrain from passing a law inconsistent with an existing 
     international legal obligation of the United States, U.S. 
     courts when faced with a conflict have--as a matter of 
     domestic law--applied the later-in-time rule. Thus, Congress 
     can, as a matter of U.S. law, decline to appropriate amounts 
     sufficient to pay United States assessments made pursuant to 
     Article 17 of the Charter. However, such action by Congress 
     does not relieve the United States of its responsibility 
     under international law. Instead, the failure to pay renders 
     the United States in breach of its international obligations.
       Article 19 of the Charter establishes that, where a Member 
     of the United Nations is two years in arrears in paying its 
     financial contributions, it shall lose its vote in the 
     General Assembly. The United Nations Secretariat determines 
     when a State is two years in arrears such that this sanction 
     applies. No vote of the General Assembly is involved. Indeed, 
     the United States has insisted that Article 19 should operate 
     automatically and without a vote or other implementing action 
     by the General Assembly.
       (2) A portion of the arrears owed by the United States to 
     the United Nations result from ``policy withholdings'' by the 
     executive branch, not legislatively mandated withholdings. In 
     addition, the Administration has recognized, through seeking 
     the creation of a ``contested arrear'' account, that we 
     simply intend to ``write off'' some $400 million in arrears 
     to the U.N.
       Why does this portion of U.S. arrears not constitute a 
     legal treaty obligation?
       By what rationale do we argue that some arrears are legally 
     binding and others are not?
       Do past U.N. actions in suspending the requirement for 
     payment of arrears by other countries provide a precedent for 
     our arguments?
       Answer: As your letter notes, the United States has not 
     paid certain assessments because of differences with the 
     United Nations regarding matters of policy. A significant 
     amount of these non-payments reflects an ongoing dispute 
     between the United States and the United Nations as to the 
     specific amounts that the United States is to provide with 
     respect to certain tax reimbursements. Other non-payments 
     reflect policy differences regarding particular UN programs 
     or actions. Some of these ``policy withholdings'' have been 
     implemented by the Executive Branch. Others, such as the 25% 
     ceiling on the amount the United States will pay for 
     peacekeeping operations, arise under statute. Whatever their 
     policy justification, these withholdings do not relieve the 
     United States of its continuing international legal 
     obligation to pay the amount assessed.
       (3) What are the legal consequences of our failure to pay 
     our arrears?
       Who determines what the U.S. legal obligation is, the U.S. 
     or the U.N.?
       Answer: The only legal sanction for failure to pay arrears 
     specified in the Charter is the loss of vote under Article 
     19, as previously mentioned. Some governments have urged that 
     the United Nations adopt additional measures to sanction 
     countries that are significantly in arrears, such as 
     limitations on procurement or on recruitment of their 
     nationals. The United States has opposed all of these 
     proposals. Thus far, none has been adopted. However, 
     sustained U.S. non-payment of its assessments has lead to 
     growing criticism that the United States does not abide by 
     international law.
                                  ____



                                                      Committee on


                                      International Relations,

                                     Washington, DC, May 15, 1998.
     Hon. Madeleine K. Albright,
     Secretary of State, Department of State, Washington, DC.
       Dear Madam Secretary: I want to ask clarification of the 
     status of United States dues to the United Nations.
       Some commentators have suggested increasingly that the 
     United States may not be obligated legally to pay its 
     assessed dues to the United Nations. The Administration has 
     stressed that these dues are international legal treaty 
     obligations of the United States. I would appreciate answers 
     to the following questions, in hopes of clarifying discussion 
     of this issue.
       (1) On what legal basis does the United States owe money to 
     the United Nations?
       In what document does the obligation arise?
       Does Article 17 of the United Nations Charter, which states 
     ``the expenses of the Organization shall be borne by the 
     Members as apportioned by the General Assembly,'' impose a 
     treaty obligation?
       From a legal perspective, how does Congress' power of the 
     purse under the Constitution square with any legal obligation 
     to pay dues to the United Nations?
       When a treaty and a law conflict, which prevails?
       Does the power of Congress to withhold funds release it 
     from treaty obligations to pay dues?
       Does the lack of an enforcement mechanism on the part of 
     the United Nations to compel payment nullify any legal U.S. 
     obligation to pay dues to that institution?
       (2) A portion of the arrears owed by the United States to 
     the United Nations result from ``policy withholdings'' by the 
     executive branch, not legislatively mandated withholdings. In 
     addition, the Administration has recognized, through seeking 
     the creation of a ``contested arrear'' account, that we 
     simply intend to ``write off'' some $400 million in arrears 
     to the U.N.
       Why does this portion of U.S. arrears not constitute a 
     legal treaty obligation?
       By what rationale do we argue that some arrears are legally 
     binding and others are not?
       Do past U.N. actions in suspending the requirement for 
     payment of arrears by other countries provide a precedent for 
     our arguments?
       (3) What are the legal consequences of our failure to pay 
     our arrears?
       Who determines what the U.S. legal obligation is, the U.S. 
     or the U.N.?
       I appreciate your cooperation in providing answers to these 
     questions.
       With best regards,
           Sincerely,
                                                  Lee H. Hamilton,
                                        Ranking Democratic Member.

     

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