The Congressional Record is a unique source of public documentation. It started in 1873, documenting nearly all the major and minor policies being discussed and debated.
“U.N. DUES ARE A LEGAL OBLIGATION” mentioning the U.S. Dept of State was published in the Extensions of Remarks section on pages E1437-E1438 on July 24, 1998.
The publication is reproduced in full below:
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. HamiltonHouse of Representatives
Dear Mr. Hamilton: Thank you for your letter of May 15, raising several important 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.
____________________
