United Nations Charter Article 98

Here is what appears to be the first draft of Article 98 of the UN Charter, labelled with the initials “VF” for Vladimir Fabry. All the notations are in Vlado’s script. It was a little confusing to see “first draft”, because according to the UN Librarians (Thank you, Ask DAG!), Article 98 was adopted at the same time as the rest on 25 June 1945. Perhaps this was a first draft of a revision?

What makes Article 98 so significant, is that it gave Dag Hammarskjold the authority to go on his final peace mission to Ndola. Holding this document in my hands for the first time, recognizing its role in the destiny of Vlado and his colleagues, I recalled this quote from Hammarskjold:

“Destiny is something not to be desired and not to be avoided – a mystery not contrary to reason, for it implies that the world, and the course of human history, have meaning.”

UN Article 98 first draft

UN Article 98 first draft i

UN Article 98 first draft p.ii

UN Article 98 first draft p.iii

UN Article 98 first draft p.66

In regards to Article 98, here are a few excerpts from Dag Hammarskjold’s address to Oxford University, 30 May 1961, “The International Civil Servant in Law and in Fact”:

“To sum up, the Charter laid down these essential legal principles for an international civil service:

» It was to be an international body, recruited primarily for efficiency, competence and integrity, but on as wide a geographical basis as possible;

» It was to be headed by a Secretary-General who carried constitutionally the responsibility to the other principal organs for the Secretariat’s work;

» And finally, Article 98 entitled the General Assembly and the Security Council to entrust the Secretary-General with tasks going beyond the verba formalia of Article 97 – with its emphasis on the administrative function – thus opening the door to a measure of political responsibility which is distinct from the authority explicitly accorded to the Secretary-General under Article 99 but in keeping with the spirit of that Article.

This last-mentioned development concerning the Secretary-General, with its obvious consequences for the Secretariat as such, takes us beyond the concept of a non-political civil service into an area where the official, in the exercise of his functions, may be forced to take stands of a politically controversial nature.”

[…]

“In Article 98 it is, thus, provided not only that the Secretary-General “shall act in that capacity” in meetings of the organs, but that he “shall perform such other functions as are entrusted to him by these organs.” This latter provision was not in the Covenant of the League. It has substantial significance in the Charter, for it entitles the General Assembly and the Security Council to entrust the Secretary-General with tasks involving the execution of political decisions, even when this would bring him – and with him the Secretariat and its members – into the arena of possible political conflict. The organs are, of course, not required to delegate such tasks to the Secretary-General but it is clear that they may do so. Moreover, it may be said that in doing so the General Assembly and the Security Council are in no way in conflict with the spirit of the Charter – even if some might like to give the word “chief administrative officer” in Article 97 a normative and limitative significance – since the Charter itself gives to the Secretary-General an explicit political role.”

[…]

“A simple solution for the dilemmas thus posed for the Secretary-General might seem to be for him to refer the problem to the political organ for it to resolve the question. Under a national parliamentary regime, this would often be the obvious course of action for the executive to take. Indeed, this is what the Secretary-General must also do whenever it is feasible. But the serious problems arise precisely because it is so often not possible for the organs themselves to resolve the controversial issue faced by the Secretary-General. When brought down to specific cases involving a clash of interests and positions, the required majority in the Security Council or General Assembly may not be available for any particular solution. This will frequently be evident in advance of a meeting and the Member States will conclude that it would be futile for the organs to attempt to reach a decision and consequently that the problem has to be left to the Secretary-General to solve on one basis or another, on his own risk but with as faithful an interpretation of the instructions, rights and obligations of the Organization as possible in view of international law and the decisions already taken.

It might be said that in this situation the Secretary-General should refuse to implement the resolution, since implementation would offend one or another group of Member States and open him up to the charge that he had abandoned the political neutrality and impartiality essential to his office. The only way to avoid such criticism, it is said, is for the Secretary-General to refrain from execution of the original resolution until the organs have decided the issue by the required majority (and, in the case of the Security Council, with the unanimous concurrence of the permanent members) or, maybe, has found another way to pass responsibility over onto governments.

For the Secretary-General this course of action – or more precisely, non-action – may be tempting; it enables him to avoid criticism by refusing to act until other political organs resolve the dilemma. An easy refuge may thus appear to be available. But would such a refuge be compatible with the responsibility placed upon the Secretary-General by the Charter? Is he entitled to refuse to carry out the decision properly reached by the organs, on the ground that the specific implementation would be opposed to positions some Member States might wish to take, as indicated, perhaps, by an earlier minority vote? Of course the political organs may always instruct him to discontinue the implementation of a resolution, but when they do not so instruct him and the resolution remains in effect, is the Secretary-General legally and morally free to take no action, particularly in a matter considered to affect international peace and security? Should he, for example, have abandoned the operation in the Congo because almost any decision he made as to the composition of the Force or their role would have been contrary to the attitudes of some Members as reflected in debates, and maybe even in votes, although not in decisions.

The answers seem clear enough in law; the responsibilities of the Secretary-General under the Charter cannot be laid aside merely because the execution of decisions by him is likely to be politically controversial. The Secretary-General remains under the obligation to carry out the policies as adopted by the organs; the essential requirement is that he does this on the basis of his exclusively international responsibility and not in the interest of any particular State or groups of States.

This presents us with this crucial issue: is it possible for the Secretary-General to resolve controversial issues on a truly international basis without obtaining the formal decision of the organs? In my opinion and on the basis of my experience, the answer is in the affirmative; it is possible for the Secretary-General to carry out his tasks in controversial political situations with full regard to his exclusively international obligation under the Charter and without subservience to a particular national or ideological attitude. This is not to say that the Secretary-General is a kind of Delphic oracle who alone speaks for the international community. He has available for his task, varied means and resources.

Of primary importance in this respect are the principles and purposes of the Charter, which are the fundamental law accepted by and binding on all States.”

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