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Published online by Cambridge University Press: 27 February 2017
The successive holders of the office of Secretary-General of the United Nations have displayed considerable boldness and resourcefulness in the exercise of powers not spelled out in the Charter of the Organization but regarded as inherent in the office. Not surprisingly, the majority, but not all, of the numerous instances in which the United Nations Secretary-General has acted under those powers have concerned political questions. This activity, which usually aims either at forestalling potential disputes or at settling or assisting in the settlement of actual ones, has taken on a multiplicity of forms. In fact, just prior to the substantive involvement of the Secretary-General in the Central American situation, which was initiated in November 1986 and constituted yet another example of the use of his inherent powers, a point had been reached where very little room appeared to remain for significant innovation in the use of those powers to promote the settlement of disputes. Nevertheless, that situation gave the UN Secretary-General an opportunity to demonstrate that new ground could still be broken in this respect.
1 In many cases, the initiatives that the UN Secretary-General has taken in using his inherent powers have been purely or predominantly of a humanitarian character. A notable example is the efforts he undertook, in 1971 and 1972, for the relief of East Pakistan. For a succinct description of this activity, see Repertory of Practice of United Nations Organs, Supp. No. 5, Vol. 5, under Art. 98, paras. 48–64 (1986).
2 For an account of the activities of this type carried out from the outset to Dec. 31, 1979, see 5 Repertory of Practice of United Nations Organs, under Art. 98, para. 106 (1955), and the five supplements thereto, as follows: Supp. No. 1, Vol. 2, under Art. 98, paras. 47–58 (1958); Supp No. 2, Vol. 3, under Art. 98, paras. 253–313 (1963); Supp. No. 3, Vol. 4, under Art. 98, paras. 662–709 (1973); Supp. No. 4, Vol. 2, under Art. 98, paras. 288–325 (1982); and Supp. No. 5, Vol. 5, under Art. 98, paras. 668–762 (1986). See also Gordon, Resolution of the Bahrain Dispute, 65 AJIL 560 (1971); and Ramcharan, The Good Offices of the Secretary-General of the United Nations in the Field of Human Rights, 76 AJIL 130 (1982).
3 It has been maintained that the Secretary-General's power to act on his own with respect to political matters stems from Article 99 of the United Nations Charter. See L. Goodrich, E. Hambro & A. Simons, Charter of the United Nations: Commentary and Documents 592 (3d rev. ed. 1969); J.-P. Cot & A. Pellet, La Charte des Nations Unies 1322–24 (1985). This view has occasionally been advanced by the Secretary-General himself. (See, among other pronouncements, those contained in UN press releases SG/SM/3342, Sept. 20, 1982, at 2, and SG/SM/3560, May 25, 1984, at 4.) It is based on the idea that his authority under Article 99 necessarily carries with it the power to investigate disputes or situations that can call that article into play. But it should be noted that this argument necessarily applies only to fact-finding activities. Activities undertaken by the Secretary-General on his own, with a view to settling or contributing to the settlement of international disputes, cannot reasonably be regarded as being within the scope of the argument. For, far from providing the Secretary-General with means of applying Article 99, those activities aim at obviating the application of that article.
4 Prior to his involvement in the Central American situation as of November 1986, the OAS Secretary-General had undertaken a small measure of political initiative in that regard. For instance, he had acted as a moderator in the conversations between the foreign ministers of El Salvador and Honduras that led to the agreement, reached in October 1976, to submit to mediation their disputes arising from the armed conflict of July 1969. See General Secretariat, Organization of American States, Inter-American Treaty of Reciprocal Assistance Applications: Vol. III, 1973–1976, at 52 (1977).
5 W. Manger, Pan America in Crisis: the Future of the OAS 78 (1961). On the powers of the OAS Secretary-General, this author observes: “Entirely apart from personal qualifications, it is not in keeping with the temperament of the governmental representatives or the conditions under which the inter-American regional system operates, to delegate to any one individual the powers that have been entrusted to the Secretary-General of the United Nations.” To be sure, these observations refer to powers conferred on the OAS Secretary-General by the organs of the OAS, rather than to those he exercises on his own. But it is certainly to be expected (on the practical or political, if not the strictly legal, plane) that there would be a positive correlation between the former and the latter powers.
6 The Protocol of Amendment to the OAS Charter, better known as the Protocol of Cartagena de Indias, adopted on Dec. 5, 1985, is now in force. Its Article 116 reads:
The Secretary-General or his representative may participate with voice but without a vote in all meetings of the Organization.
The Secretary-General may bring to the attention of the General Assembly or the Permanent Council any matter which in his opinion might threaten the peace and security of the hemisphere or the development of the Member States.
The authority to which the preceding paragraph refers shall be in accordance with the present Charter.
7 The trend was reaffirmed by the OAS General Assembly's adoption, in November 1986, of Resolution 824 (XVl–O/86), by which it approved a proposal by the Secretary-General to establish an Inter-American Fund of Priority Assistance in 1987, to strengthen basic principles of representative democracy in Haiti following the political events that took place in that country in 1986.
8 See SC Res. 530 (May 19, 1983) and 562 (May 10, 1985); GA Res. 38/10 (Nov. 11, 1983), 39/4 (Oct. 26, 1984) and 41/37 (Nov. 18, 1986).
9 The Contadora Group consists of Colombia, Panama, Mexico and Venezuela, and the Support Group of Argentina, Brazil, Peru and Uruguay.
10 The resolution, by which the Permanent Council created a committee to investigate a complaint by the Foreign Minister of Costa Rica, was adopted on June 7, 1985. See OEA/Ser.G, CP/RES.427 (618/85).
11 The OAS resolutions in question, adopted by the General Assembly, are the following: AG/RES.675 (XIII–O/83) (Nov. 18, 1983), AG/RES.702 (XIV–O/84) (Nov. 17, 1984), AG/RES.770 (XV–O/85) (Dec. 9, 1985) and AG/RES.831 (XVI–O/86) (Nov. 15, 1986).
12 Thus, in justifying, at a meeting of the OAS Permanent Council held on Jan. 8, 1987, the initiatives he had taken regarding the Central American situation, the OAS Secretary-General did not rely primarily on the support expressed by the OAS organs for the Contadora peace process. His line of argument was, instead, that his initiatives fell within the normal exercise of the functions he performed in the fulfillment of his responsibilities, regard being had to the support in question. (See OEA/Ser.G, CP/ACTA 683/87, at 7 (1987).) The records contain no other statement by either of the Secretaries-General concerning the legal basis of the initiatives they took with respect to the Central American situation. It should also be noted that a statement made by the representative of Guyana in the Security Council following the adoption of Security Council Resolution 530 (1983) made it clear that in his view the functions of the UN Secretary-General under the resolution, by which the Council commended the Contadora peace process, did not go beyond those explicitly entrusted to him by the resolution, which were exclusively informational. The statement in question also made it clear that in the view of that representative any good offices function performed by the Secretary-General with respect to the Central American situation would be based on his inherent powers. See the record of the corresponding meeting on May 19, 1983, UN Doc. S/PV.2437, at 21 (1983).
13 The aide-mémoire, which is not in the public domain, is mentioned in the communiqué of Jan. 21, 1987, issued by the foreign ministers of the Contadora and Support Groups at the conclusion of their visit to the Central American capitals. See note 15 infra. It is also mentioned in paragraph 18 of the Joint Political Declaration of the third conference of foreign ministers of the European Economic Community, the Central American countries and the Contadora Group, which took place in Guatemala City in February 1987. See UN Doc. A/42/156-S/ 18726 (1987). The OAS Secretary-General gave the OAS Council an account of the submission of the aide-mémoire and its contents, at a special meeting of the Council held on Jan. 8, 1987. See OEA/Ser.G, CP/ACTA 683/87 (1987). The aide-mémoire is also mentioned in the Report on the Work of the Organization submitted by the United Nations Secretary-General to the General Assembly at its 42d session, 42 UN GAOR Supp. (No. 1) at 2, UN Doc. A/42/1 (1987). Somewhat cryptic references to the aide-mémoire are contained in the first preambular paragraph and operative paragraph 4 of General Assembly Resolution 42/1 (Oct. 7, 1987), and the first preambular paragraph of General Assembly Resolution 43/24 (Nov. 15, 1988).
14 The UN Secretary-General informed the General Assembly and the Security Council of the visit in a report issued on Feb. 12, 1987. See UN Doc. A/42/127–S/18686 (1987). A reference to the visit is also contained in the Secretary-General's Report on the Work of the Organization, supra note 13, at 2. Similarly, the OAS Secretary-General reported on the visit to the OAS Council on Jan. 29, 1987. See OEA/Ser.G, CP/ACTA 685/87 (1987).
15 For the text of the communiqué, see UN Doc. A/42/98-S/18637, Annex (1987).
16 For the text, see UN Doc. A/42/130–S/l8697, Annex (1987).
17 For the text, see UN Doc. A/42/521–S/19085, Annex (1987), reprinted in 26 ILM 1166 (1987). It may be noted that the agreement, which has not been registered under Article 102 of the UN Charter, does not constitute a treaty, but only a nonbinding agreement, such as the Final Act of the Helsinki Conference of 1975. (The main reason for this relates to the constitutional law of the five Central American states, under which the signatories of the agreement, who did not seek the approval of their legislatures before signing it, would have required such approval had they intended it to be a treaty.)
18 See UN press release SG/SM/4023, Aug. 10, 1987 (emphasis added). In accordance with paragraph 10(a) of the agreement, supra note 17, the International Verification and Follow-up Commission was to be “responsible for verifying and monitoring fulfilment of the commitments set forth” in the agreement.
19 For details as to the time and place of the meetings, see UN Doc. A/43/729, para. 6 (1988). Neither the report nor the records of the Commission are in the public domain.
20 At the meetings it held at the headquarters of the United Nations and the OAS, the Commission was serviced by the UN and OAS Secretariats, respectively. At the other meetings, held on the territories of governments represented on the Commission, the secretariat services the Commission required were provided by the respective governments. The draft of the Commission's report was prepared by UN Secretariat officials.
21 See UN Doc. A/42/911–S/19447 (1988).
22 On Jan. 8, 1987, the Permanent Council, at the request of the United States, held a special meeting to discuss the intervention of the OAS Secretary-General in the Central American peace process. At this meeting, the Secretary-General provided information to the Permanent Council on his joint efforts with the UN Secretary-General and on the invitation he had received from the foreign ministers of the Contadora and Support Groups to visit Central America. Seventeen delegations, including that of the United States, expressly supported the initiative taken by the Secretary-General. One delegation, however, that of Ecuador, demurred. Its grounds were that the Secretary-General was under an obligation to report to the Council and seek a mandate from it before taking the initiative in question. The representative of the United States, after initially stating that, given “his obligations to this Council, it would have been most welcome and appropriate if the Secretary-General had informed us of his planned intervention in the negotiating process in Central America,” associated himself fully, in his closing remarks, with the representatives who had expressed support for that intervention. See OEA/Ser.G, CP/ACTA 683/87 (1987); see also Statement by the Secretary General, Ambassador João Clemente Baena Soares, at the Special Meeting of the Permanent Council, OEA/Ser.G, CP/INF.2493/87 (1987).
23 Two reports submitted by the United Nations Secretary-General to the General Assembly in September and October 1988 give an account of the work of a joint preliminary technical mission, dispatched by the two Secretaries-General, at the request of the International Verification and Follow-up Commission, in October 1987 to evaluate the requirements for possible on-site inspection of the compliance by the Central American Governments with their commitments as regards security. UN Docs. A/43/552 and A/43/729, paras. 5 and 7, respectively (1988). In taking action in this connection, the UN Secretary-General acted under his inherent powers to the extent, if any, that the mission functioned prior to Oct. 7, 1987, the date of adoption of resolution 42/1. (The reports do not indicate the exact date on which the mission was established.) In connection with the mission, the OAS Secretary-General acted under his inherent powers up to Nov. 14, 1987, the date of adoption of Resolution 871 (XVII–O/87). (The reports indicate that the mission was active in November 1987, but do not give the date on which it completed its activities.) The remaining substantive actions taken by the two Secretaries-General fall outside the scope of this note inasmuch as they occurred in 1988. (They relate to the conclusion, in March 1988, of the Sapoá Agreement between the Government of Nicaragua and the Nicaraguan resistance, a matter in which the OAS Secretary-General was involved, and the dispatch, also in March 1988, of a UN fact-finding mission to Nicaragua, the subject of UN pressrelease SG/SM/4100, Mar. 21, 1988.) These actions by the two Secretaries-General were carried out in an entirely individual manner.
24 The United Nations Secretary-General had accepted and performed functions assigned to him by multilateral treaties. But this action was not based on his inherent powers. Moreover, the functions in question were of an administrative nature and did not cast him in the role of member of any organ. See the relevant opinion of the United Nations Office of Legal Affairs, 1972 UN Jurid. Y.B. 186–88, UN Sales No. E.74.V.1 (1974).
25 The UN Secretary-General had cooperated with the Secretary-General and the Chairman of the OAU with respect to the question of Western Sahara. But this action was based on resolutions of the General Assembly (the first of which was Resolution 35/19 of Nov. 11, 1980).