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There's More Than Politics at Stake in Unpaid U.N. Dues

Law: If America does not live up to its obligations, then any nation would be free to violate any commitment made to us.

March 04, 1998|RICHARD N. GARDNER | Richard N. Gardner, former U.S ambassador to Italy and Spain, is a professor of law and international organization at Columbia University

A top priority for the Clinton administration is to persuade Congress to pay more than $1 billion in back dues to the United Nations. Failure to do so will undermine critical U.N. operations in peacekeeping and development and further diminish U.S. influence in the world organization.

Complicating the administration's task is a new and fallacious idea that has been accepted by many members of Congress: that the United States has no legal obligation to pay its U.N. debts. Last fall the Senate Foreign Relations Committee declared that the U.N. Charter "in no way creates a 'legal obligation' on the United States Congress to authorize and appropriate" the money to pay the dues. In justification, the committee wrote: "The United States Constitution places the authority to tax United States citizens and to authorize and appropriate those funds solely in the power of the United States Congress."

These statements reflect a dangerous misunderstanding of the relation between international law and domestic law.

The U.N. Charter is a treaty that legally binds us as it does other U.N. members. Of course, a treaty cannot override the U.S. Constitution. Congress is free as a matter of domestic law to violate U.S. obligations under international law.

But these truisms do not alter the facts: If Congress exercises its constitutional right to violate a treaty, the United States still has a legal obligation to other countries; and our refusal to live up to our commitments can have legal consequences.

There is no international police force to enforce international law, but nations generally observe their treaty obligations because of their desire for reciprocity and fear of reprisal.

In 1961, when the Soviet Union refused to pay its assessments for the Congo and Middle East peacekeeping operations, Republican and Democratic members of Congress insisted that the U.S. go to the World Court to get an advisory opinion that the Soviet Union had a legal obligation to pay. The U.S. brief to the court, in whose preparation I had a part, stated: "The General Assembly's adoption and apportionment of the Organization's expenses create a binding legal obligation on the part of the member states to pay their assessed shares." In 1962, the court agreed with that proposition, and the General Assembly accepted it.

Article 19 of the U.N. Charter provides that a country in arrears of its assessments by two full years shall lose its vote in the General Assembly. The Assembly, in an unfortunate failure of political will, failed to apply that sanction to the Soviet Union when it became applicable in 1964. Nevertheless, the Assembly recently has regularly applied the loss of vote sanction.

We are not just dealing here with legal technicalities, but realpolitik in the best sense of the word. If nations were free to treat their U.N. assessments as voluntary, the financial basis of the organization would quickly dissolve. Some would not mind it if the U.N.'s financial support unraveled. They do not seem fully to appreciate how important the U.N.'s work in conflict resolution, peacekeeping, sustainable development, humanitarian relief and human rights can be for the United States.

If the United States has no legal obligation to live up to its treaties and other international agreements, neither do other countries. Then, any country would be free to violate any legal commitment it has made to us, whether to open its domestic market, reduce its nuclear arsenal, provide basing for our ships and aircraft, extradite or prosecute terrorists or refrain from poisoning the global environment. Congress must focus on all of the consequences of its failure to honor our U.N. obligations.

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