The Secretariat and the Secretary-General

Any matter, not merely a dispute between States, so it reaches internal situations, humanitarian emergencies and anything else.

In his opinion. The judgment is the Secretary-General's, and no organ has to agree before the matter is raised.

May threaten. The threshold is lower than article 39, which requires the Council to determine that a threat exists. Article 99 operates before that point.

Why it matters beyond the formal act. Because the Secretary-General may bring a matter to the Council, he must be in a position to know about it, which is the accepted foundation of the office's independent information gathering, its good offices and its quiet diplomacy. Article 99 has been formally invoked only rarely, and its influence lies almost entirely in what it implies.

The international civil service: articles 100 and 101

Article 100(1). In the performance of their duties the Secretary-General and the staff shall not seek or receive instructions from any government or from any other authority external to the Organization, and shall refrain from any action which might reflect on their position as international officials responsible only to the Organization.

Article 100(2). Each Member undertakes to respect the exclusively international character of the responsibilities of the Secretary-General and the staff and not to seek to influence them in the discharge of their responsibilities.

Article 100 is the constitutional definition of an international civil servant. The duty runs both ways: the official must not seek or receive instructions, and the Member must not seek to influence. It is the reason a Secretariat official is not a representative of the State of which he is a national, and the reason a national of a State may serve in a matter concerning that State.

Article 101(1). The staff shall be appointed by the Secretary-General under regulations established by the General Assembly.

Article 101(2). Staff shall be permanently assigned to the Economic and Social Council, the Trusteeship Council and, as required, to other organs, and these staffs form part of the Secretariat.

Article 101(3), the recruitment rule. The paramount consideration in employment and in the conditions of service shall be the necessity of securing the highest standards of efficiency, competence, and integrity. Due regard shall be paid to the importance of recruiting the staff on as wide a geographical basis as possible.

The ordering is deliberate. Merit is paramount; geography is a due regard. In practice geographical distribution operates through a system of desirable ranges by Member State, and the tension between the two limbs of article 101(3) is a permanent feature of the Organization's staffing.

Protection of the staff

Article 105(1) gives the Organization such privileges and immunities in the territory of each Member as are necessary for the fulfilment of its purposes, and article 105(2) gives officials of the Organization such privileges and immunities as are necessary for the independent exercise of their functions. The Convention on the Privileges and Immunities of the United Nations of 1946 gives detailed effect to that article.

The immunity is functional, that is, it exists for the sake of the function and not for the benefit of the individual, which is why the Secretary-General has the right and the duty to waive the immunity of an official where it would impede justice and can be waived without prejudice to the Organization's interests. The contrast with the immunity of diplomats in [Immunity from Jurisdiction] is worth a line: a diplomat's immunity is waived by the sending State, an official's by the Organization.

Functional protection. In Reparation for Injuries the Court held that the Organization has the capacity to bring an international claim for injury to its agent, whether or not the responsible State is a Member, because its agents may be sent on important missions to disturbed parts of the world and must be assured of effective protection, and the powers necessary to that end must be regarded as a necessary implication arising from the Charter. That protection rests not on nationality, of which there is none between the Organization and its agents, but on the breach of an obligation owed to the Organization itself, and competition with the national State's diplomatic protection is to be reconciled case by case and by agreement.

A worked example

The Secretary-General learns that fighting has broken out inside State AA, that the Council has not been informed, and that State AA denies anything is happening. A national of State AA employed in the Secretariat is instructed by his government to report on the Secretary-General's plans. A Secretariat official is arrested in State BB for an act done in the course of duty. The Assembly asks the Secretary-General to organise a mission to State AA.

Raising the matter. Article 99: the Secretary-General may bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security. An internal conflict is a matter, the opinion is his, and the threshold is may threaten, so he need not wait for the Council's determination under article 39.

The instructed official. Article 100(1) forbids the staff to seek or receive instructions from any government, and article 100(2) binds State AA to refrain from seeking to influence them. The official's duty is to refuse, and the State is in breach of its undertaking.

The arrested official. Article 105(2) gives officials such privileges and immunities as are necessary for the independent exercise of their functions, and the immunity is functional, so it covers acts done in the course of duty. It belongs to the Organization, and the Secretary-General may waive it where it would impede justice and waiver would not prejudice the Organization's interests.

The mission. Article 98 permits the Secretary-General to perform such other functions as are entrusted to him by the organs, so an Assembly request is a proper source of the mandate, and the mandate's limits are those the Assembly sets.

Change one fact: the official is injured on the mission by State AA's forces. Reparation for Injuries gives the Organization capacity to bring an international claim for the injury to itself and to the victim, whether or not State AA is a Member, resting on the breach of an obligation owed to the Organization; the official's national State retains its own right of diplomatic protection, and the two are reconciled case by case and by agreement.

Distinctions table

What it does NOT mean

The Secretary-General is not merely an administrator. Article 99 gives an independent political power and article 98 permits delegated functions of every kind.

The Charter does not fix a term. Five years renewable comes from a General Assembly decision of 1946.

The Charter does not exclude nationals of permanent members. That is practice, produced by the veto over the recommendation under article 97.

Staff are not their States' representatives. Article 100(1) forbids them to seek or receive instructions from any government.

Geography is not the paramount consideration. Article 101(3) makes efficiency, competence and integrity paramount and geography a due regard.

Official immunity is not personal. It is functional, belongs to the Organization, and may be waived by the Secretary-General.

Limits and criticism

The appointment procedure is the office's central weakness. A candidate must be acceptable to all five permanent members, which selects for candidates unlikely to obstruct them, and the process has historically been conducted without transparency, though the Assembly has pressed for open candidacies in recent selections.

Article 99 is invoked rarely because invoking it against the interests of a permanent member risks the Secretary-General's ability to work at all, so the power that makes the office political is the power its holder can least afford to use.

Article 100 is honoured unevenly. Governments do lobby for their nationals and about their nationals' work, and the Organization has limited means of resisting.

Article 101(3)'s two limbs pull apart, and the demand for geographical distribution, itself a legitimate response to an organisation whose early staff was drawn from a narrow group of States, is in constant tension with the paramount consideration of merit.

Quick revision

Article 97: the Secretariat is a Secretary-General and such staff as the Organization may require; appointed by the General Assembly upon the recommendation of the Security Council, so subject to the veto; chief administrative officer. Term of five years, renewable, fixed by the Assembly in 1946, not by the Charter.

Article 98: acts in that capacity in all meetings of the Assembly, Security Council, Economic and Social Council and Trusteeship Council; performs such other functions as are entrusted to him by these organs; makes an annual report to the Assembly.

Article 99: may bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security. The only independent political power, and the foundation of the office's good offices and information gathering.

Article 100: the Secretary-General and staff shall not seek or receive instructions from any government or other external authority and are responsible only to the Organization; Members undertake to respect that character and not to seek to influence them.

Article 101: staff appointed by the Secretary-General under Assembly regulations; the paramount consideration is the highest standards of efficiency, competence, and integrity, with due regard to as wide a geographical basis as possible.

Article 105: functional privileges and immunities, waivable by the Secretary-General. Reparation for Injuries: functional protection of agents, resting on the breach of an obligation owed to the Organization.

Test yourself

1. How is the Secretary-General appointed, and what follows from the procedure?

Article 97 provides that the Secretary-General shall be appointed by the General Assembly upon the recommendation of the Security Council. The two steps are cumulative, so the Assembly cannot appoint without a recommendation, and because a recommendation is a substantive decision it requires the concurring votes of the permanent members, which means any one of them can block a candidate. The practical consequences are that a candidate must be acceptable to all five permanent members, and that by an unbroken practice, though not by any rule in the Charter, no national of a permanent member has held the office. The Charter fixes no term; five years, renewable, was settled by a General Assembly decision in 1946.

2. What is the significance of article 99?

It is the only power the Charter gives the Secretary-General in his own right. He may bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security. Each element widens it: any matter, so not only an inter-State dispute; in his opinion, so no organ need agree first; and may threaten, which is a lower threshold than the determination of an existing threat that article 39 requires of the Council. Its practical importance is larger than its formal use, because the power to bring a matter to the Council implies the capacity to know of it, and that is the accepted foundation of the Secretary-General's independent information gathering, good offices and quiet diplomacy.

3. Explain the position of an international civil servant under article 100.

Article 100(1) provides that in the performance of their duties the Secretary-General and the staff shall not seek or receive instructions from any government or from any other authority external to the Organization, and shall refrain from any action which might reflect on their position as international officials responsible only to the Organization. Article 100(2) imposes the corresponding duty on States: each Member undertakes to respect the exclusively international character of those responsibilities and not to seek to influence the Secretary-General or the staff in discharging them. The consequence is that a member of the Secretariat is not the representative of the State of which he is a national, owes his duty to the Organization alone, and may properly serve on a matter concerning his own State.

4. What does article 101 require in the recruitment of staff?

That the staff be appointed by the Secretary-General under regulations established by the General Assembly, and that the paramount consideration in their employment and in the determination of conditions of service be the necessity of securing the highest standards of efficiency, competence and integrity, with due regard paid to the importance of recruiting on as wide a geographical basis as possible. The ordering matters: merit is stated as paramount and geography as a due regard, not the reverse. In practice the second limb operates through a system of desirable ranges of posts by Member State, and the tension between the two limbs is a permanent feature of the Organization's administration.

5. What immunities do Secretariat officials enjoy, and who may waive them?

Article 105(1) gives the Organization such privileges and immunities in the territory of each Member as are necessary for the fulfilment of its purposes, and article 105(2) gives officials such privileges and immunities as are necessary for the independent exercise of their functions, with the Convention on the Privileges and Immunities of the United Nations of 1946 giving detailed effect to the article. The immunity is functional, existing for the sake of the office and not for the benefit of the individual, and it therefore belongs to the Organization. It follows that the Secretary-General has the right and the duty to waive an official's immunity where it would impede the course of justice and the waiver would not prejudice the interests of the Organization, which distinguishes the position from diplomatic immunity, waived by the sending State.

6. Can the Organization protect its staff when they are injured abroad?

Yes, and the authority is Reparation for Injuries Suffered in the Service of the United Nations. The Court held that the Charter conferred on the Organization rights and obligations different from those of its Members and entrusted it with the maintenance of international peace and security, that its agents are sent on important missions to disturbed parts of the world and must be assured of effective protection, and that the powers necessary to that end are a necessary implication arising from the Charter. The Organization therefore has capacity to bring an international claim for damage caused to itself and to the victim, whether or not the responsible State is a Member. This functional protection rests not on nationality, of which there is none between the Organization and its agents, but on the breach of an obligation owed to the Organization itself, and where it competes with the national State's diplomatic protection the two are to be reconciled case by case and by agreement.