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Part 2 The United Nations: What it is, 15 The United Nations Secretariat and Secretary-General

Dame Rosalyn Higgins DBE, QC, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan

From: Oppenheim's International Law: United Nations

Rosalyn Higgins, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved. Subscriber: null; date: 09 May 2021

International organizations

(p. 495) 15  The United Nations Secretariat and Secretary-General

  1. 1.  Structure and functions of the Secretariat 15.01

  2. 2.  The International Civil Service 15.12

  3. 3.  The Secretary-General 15.38

Bailey, The Secretariat of the United Nations (rev edn, 1964); Chesterman, ‘Article 97’ in The Charter of the United Nations: A Commentary (3rd edn, eds Simma et al, 2012), 1991; Chesterman, ‘Article 98’ in The Charter of the United Nations: A Commentary (3rd edn, eds Simma et al, 2012), 2002; Chesterman, ‘Article 99’ in The Charter of the United Nations: A Commentary (3rd edn, eds Simma et al (eds), 2012), 2009; Cot, Pellet, and Forteau (eds), La Charte des Nations Unies: Commentaire article par article (3rd edn, 2005); de Cuéllar, ‘Le rôle du Secrétaire général des Nations Unies’ (1985) 89 RG 233; de Ginestel, ‘La réforme des nations unies et l’autonomie du secrétariat’ (2006) 7 Annuaire français des relations internationales 909; Ebner, ‘Article 100’ in The Charter of the United Nations: A Commentary (3rd edn, eds Simma et al, 2012), 2022; Gordenker, The UN Secretary-General and the Maintenance of Peace (1967); Gordenker, The UN Secretary-General and Secretariat (2nd edn, 2010); Jonah, ‘Secretariat: Independence and Reform’ in The Oxford Handbook on the United Nations (eds Weiss and Daws, 2007), 160; Langrod, The International Civil Service: Its Origins, Its Nature, Its Evolution (1963); Meron, The United Nations Secretariat (1977); Newman, ‘Secretary-General’ in The Oxford Handbook on the United Nations (eds Weiss and Daws, 2007), 175; Radi, ‘La réforme du système de justice interne de l’organisation des Nations Unies’ (2008) 126 Revue française d’administration publique 307; Rovine, The First Fifty Years. The Secretary-General in World Politics 1920–1970 (1970); Schermers and Blokker, International Institutional Law: Unity within Diversity (4th rev edn, 2003), ch 4; Schwebel, The Secretary-General of the United Nations: His Political Powers and Practice (1952); Sesso, ‘Il segretariato delle Nazioni Unite’ (1972) 27 La Comunità Internazionale 329; Stöckl, ‘Article 101’ in The Charter of the United Nations: A Commentary (3rd edn, eds Simma et al, 2012), 2053; Sutterlin, ‘The United Nations Secretary-General as Chief Administrator’ in The Challenging Role of the UN Secretary-General: Making ‘the Most Impossible Job in the World’ Possible (eds Rivlin and Gordenker, 1993).

(p. 496) 1.  Structure and functions of the Secretariat

1.1  Principal organ of the UN

15.01  Article 7(1) of the UN Charter provides that the Secretariat is one of the six principal organs of the UN.1 The organization of the whole Secretariat was provided for in General Assembly Resolution 13(I) (1946). The UN diverged from what had been the classic structure for international organizations—one principal organ with a subordinate secretariat.2 Whereas some earlier international organizations had been staffed by nationals of the host country or officials on secondment from their governments,3 the Secretariat of the League of Nations—and later of the UN—was based on the notion of an international civil service.4

1.2  Relationship between the Secretariat and the Secretary-General

15.02  The Secretariat is composed of the Secretary-General and staff, in accordance with Article 97 of the UN Charter.5 The Secretary-General is the head of the Secretariat and responsible for appointing the staff.6 He/she is also the ‘chief administrative (p. 497) officer of the Organization’,7 which encompasses responsibilities beyond the organ of the Secretariat.8

1.3  Scope and extent of the Secretariat

15.03  Article 97 of the UN Charter provides that the Secretariat comprises the Secretary-General and the staff required by the UN organization.9 The Secretariat supports the other principal political organs.10 Article 101(2) states: ‘Appropriate staffs shall be permanently assigned to the Economic and Social Council, the Trusteeship Council, and, as required, to other organs of the United Nations. These staffs shall form a part of the Secretariat.’11 The assignment of staff pursuant to Article 101(2) has resulted in the decentralization of the Secretariat beyond New York and the multiplication of services provided by Secretariat staff.12 Secretariat staff members serve at duty stations,13 (p. 498) regional commissions,14 field missions,15 and at the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR) (when they existed), and the International Residual Mechanism for International Tribunals (IRM, also known as the MICT).16 Major duty stations and many peacekeeping missions recruit their own staff.17

15.04  Some subsidiary organs and some Funds and Programmes have a special status in matters of appointment, as granted by the General Assembly. These ‘related entities’ include the United Nations Development Programme (UNDP), the United Nations Entity for Gender Equality and the Empowerment of Women (UN Women), the United Nations Population Fund (UNFPA), the Office of the United Nations High Commissioner for Refugees (UNHCR), the United Nations Children’s Fund (UNICEF), the United Nations Institute for Training and Research (UNITAR), the United Nations Joint Staff Pension Fund (UNJSPF), the United Nations Office for Project Services (UNOPS), the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), the United Nations University (UNU), the ICJ, International Civil Service Commission (ICSC), and the International Trade Centre United Nations Conference on Trade and Development/World Trade Organization (International Trade Centre) (UNCTAD/WTO) (ITC).18 The general principles of the Staff Rules apply to the staff of these bodies. UNRWA is an exception, in that it has not adopted the same Staff Regulations and Staff Rules as the UN Secretariat.19 The (p. 499) resolutions founding some of these organizations reflect a desire to grant them administrative independence and flexible management.20

1.4  Structure of the Secretariat

15.05  The Secretariat has a functional structure. It is organized into different Departments and Offices with specific areas of responsibility.21 Each Department/Office is divided and subdivided into several hierarchical organizational elements, each of which is responsible for a segment of the functions of that Department/Office.22 The Secretariat also includes the staff of the ICTY, the ICTR,23 (when they existed), the IRM, special advisers,24 the UN Regional Commissions,25 UN Offices away from (p. 500) the New York Headquarters,26 and other issue-specific offices27 and entities.28 Departments and Offices can be restructured or abolished according to the perceived needs of the organization.29 The Secretary-General, while not being a principal organ himself/herself, is the head of the Secretariat and appoints the Under-Secretaries-General (USGs) and Assistant-Secretaries-General (ASGs) who are in charge of the different Offices and Departments.30 The individual Offices and Departments are further divided into divisions, sections, branches, and units. The heads of these sub-divisions usually hold the rank of Director or Chief and report directly to the USG or ASG.31

1.5  Functions of the Secretariat

15.06  The UN Charter is largely silent as to the functions of the Secretariat.32 In practice the Secretariat carries out the diverse day-to-day work of the UN.33 The Secretariat’s functions derive from its role in supporting the organs of the UN and the specific tasks given to it by the Secretary-General.34

(p. 501) 1.5.1  Administrative functions

15.07  A large proportion of the Secretariat’s work is directed to supporting the work of the principal political and subsidiary organs of the UN. These tasks include the provision of rooms and related facilities for meetings and conferences; the accreditation of delegates; the drafting, translation, reproduction, and distribution of documents; the compilation of documents; intervention, through the offices of the chair during discussions; the transmission of nominations of persons for membership in sub-committees, or election as chairpersons or rapporteurs.35 The preparation of the UN’s budget is also a task of the Secretariat, as is the subsequent implementation and monitoring of the budget once it has been approved by the General Assembly.36

1.5.2  Information functions

15.08  The Secretariat deals with information in two ways.37 First, it communicates information on the work of the organization to the member states, civil society, and the general public.38 Second, it transmits information within the organization, including to delegates and experts.39

1.5.3  Recording and reporting functions

15.09  The Secretariat is involved in recording meetings and conferences.40 In addition, the Secretariat may collect reports from member states or gather data.41 Organs may call (p. 502) upon the Secretariat to compile statistics, produce studies, or survey economic, legal, or social trends in order to assist with their decision-making.42 The Secretariat is responsible for registering and publishing treaties or international agreements entered into by any member of the UN.43

1.5.4  Substantive functions

15.10  The Secretariat also engages in tasks related to the substantive function of the Department or Office, such as encouraging the progressive development of international law and its codification,44 coordinating humanitarian action,45 ensuring the safety and security of staff,46 providing electoral assistance,47 promoting disarmament efforts,48 and managing peacekeeping operations.49

(p. 503) 1.6  Efforts to reform the Secretariat

15.11  There have been proposals to reform the Secretariat almost since the date of its establishment.50 Reform proposals have originated from the Secretary-General, the member states, and independent bodies.51 Reforms tend to be introduced by the Secretary-General at the beginning of his/her term, but calls for reform have also come from the exposure of scandals52 and pressure from member states.53 Reforms have been implemented to varying degrees.54 Secretary-General Dag Hammarskjöld initiated the first wave of reforms in 1954.55 Secretary-General Lie was prompted to (p. 504) look into reform and did so.56 The next real wave came from Secretary-General U Thant in 1968.57 Secretary-General Kurt Waldheim introduced reforms in 1975.58 Institutional reforms were also undertaken by Secretary-General Boutros Boutros-Ghali.59 Secretary-General Kofi Annan made reforming the UN a priority during his two terms, making major efforts in 1997, 2002, 2005, and 2006.60 Secretary-General Ban announced his reform agenda in 2008.61

(p. 505) 2.  The International Civil Service

15.12  The independence of the International Civil Service is protected by Article 100 of the UN Charter.62 Effective 1 January 2003, all UN staff members are referred to as ‘international civil servants’.63 This terminology also applies to staff members working for bodies that are related to, but not part of, the UN Secretariat.64

2.1  Applicable rules

15.13  Three sets of rules apply to the staff of the UN Secretariat. First, the UN Charter contains provisions relating to the service of staff. These address the eligibility of men and women to participate in any capacity and under conditions of equality (Article 8), the basic composition of the Secretariat (Article 97), the independent and international character of the responsibilities of the staff (Article 100), the appointment, assignment, and recruitment of staff (Article 101), and privileges and immunities (Article 105). Second, the General Assembly issues Staff Regulations, setting out the broad principles of human resources policy for the staffing and administration of the Secretariat.65 Third, the Secretary-General is required by the Staff Regulations to provide and enforce Staff Rules, which implement the Staff Regulations.66 In addition, the International Civil Service is subject to regulation by relationship (p. 506) agreements between the UN and specialized agencies,67 headquarters agreements,68 and the conventions on the UN’s privileges and immunities and the privileges and immunities of specialized agencies.69 Moreover, the General Assembly can develop and modify the service regulations by passing resolutions.70 Secretary-General’s Bulletins71 and Administrative Instructions72 also affect the rights of staff.

2.2  Common system

15.14  The common system represents common standards, methods, and arrangements being applied to salaries, allowances, and benefits for the staff of the UN, the specialized agencies that have entered into a relationship agreement with the UN, the IAEA, and other specialized agencies.73 It is designed to avoid major discrepancies in terms (p. 507) and conditions of employment, to prevent competition in the recruitment of staff, and to facilitate the exchange of personnel.74 The common system is composed of principles, not binding legal norms.75 Coordination and administration is carried out through a number of entities.

2.3  Secretariat’s role in the common system

15.15  Within the OHRM, the Conditions of Service Section conducts salary surveys and provides advice on the administration of the common system.76

2.4  Fifth Committee’s role in the common system

15.16  Member states are involved in the working of the common system through participation in the Fifth Committee, which considers and approves financial and budgetary arrangements with specialized agencies and makes recommendations to the agencies concerned.77

2.5  Chief Executives Board’s role in the common system

15.17  The Chief Executives Board (CEB) promotes coordination and cooperation on issues facing UN system organizations. It is composed of the executive heads of the (p. 508) organizations of the UN System, under the chairmanship of the Secretary-General.78 The Human Resources Network of the CEB provides strategic advice on human resource management developments, and prepares, on behalf of the CEB, input and exchange with the ICSC.79

2.7  Joint Inspection Unit’s role in the common system

15.19  The JIU,83 the independent external oversight body of the UN system, aims to achieve greater coordination in human resources matters.84 It has prepared a number of reports (p. 509) on the common system.85 There have been divergences of views between the JIU and the ICSC.86

2.8  Appointment and classification

15.20  The power of appointment of staff members lies with the Secretary-General.87 He/she is directly involved in the appointment of senior staff,88 while recruitment of lower- and mid-level staff is undertaken by the heads of Departments or Offices responsible for programme delivery.89 The process is often prolonged, leading to high vacancy rates, particularly in the field.90 The paramount consideration in the appointment or transfer of staff is the need to secure the ‘highest standards of (p. 510) efficiency, competence and integrity’.91 Preference in appointment, transfer, and promotion is given to internal candidates.92

2.8.1  Geographical distribution

15.21  According to Article 101(3) of the UN Charter, ‘Due regard shall be paid to the importance of recruiting the staff on as wide a geographical basis as possible.’93 At the same time, selection of staff members shall be made without distinction as to race, sex, or religion.94 The General Assembly has adopted ‘desirable ranges’ for the geographical distribution of staff. Three factors are used to calculate these ranges: membership, contribution, and population.95 Member states are characterized as ‘overrepresented’, ‘within range’, ‘underrepresented’, and ‘unrepresented’.96 In reality, of the more than 40,000 staff in the UN Secretariat, only 3,582 are in posts subject to geographical distribution.97 There is a perception that the requirement of geographical distribution and representation applies more broadly, and in practice managers do pay attention to achieving a balanced geographical distribution during recruitment, regardless of whether the post in question is subject to the requirement. Concerns have been expressed as regards the overrepresentation of nationals from Europe and North America at the senior and policymaking levels of the Secretariat.98 The positions of USG and ASG are sometimes in practice reserved for nationals of certain member states or regional groups.99

(p. 511) 2.8.2  Gender

15.22  For many years, men have occupied most of the senior posts within the UN. Efforts have been made by the General Assembly and the Secretary-General to increase the number of women in posts subject to geographical distribution in the Secretariat, especially in senior and policymaking roles.100 In 2010, the UN’s work on gender equality and the empowerment of women was consolidated into a new agency called UN Women.101

2.8.3  National competitive recruitment examination

15.23  The National Competitive Recruitment Examination (NCRE) was established in 1980; and the examinations were held on an annual basis, targeting the nationals of member states that were not adequately represented in the Secretariat.102 These examinations sought to establish rosters of candidates to fill positions at the P-2 (young professional) level.103 In practice, the process was too slow to meet the demands of the organization and the legitimate expectations of the candidates on the (p. 512) roster.104 The last NCRE examination was held in 2010, and it was replaced with the Young Professionals Programme (YPP) in 2011.105

2.8.4  Secondment

15.24  Secondment has occurred in the UN Secretariat in two senses. First, secondment occurs when UN staff members move from one organization to another for a fixed period, during which they are normally paid by and are subject to the staff regulations and rules of the receiving organization but retain their rights of employment in the releasing organization.106 This type of secondment is uncontroversial.107 Second, it can refer to an individual’s temporary detachment from the public service of their member state in order to be put at the disposal of the UN for a limited period of time. This type of secondment was favoured by Soviet states during and after the establishment of the UN.108 The legality of this practice has been challenged before the ICJ, as well as within the UN internal justice system.109 Both types of secondment are subject to UN salary scales and can be funded on a reimbursable or non-reimbursable basis.110 With the expansion of peacekeeping in the 1990s, the DPKO (p. 513) became increasingly reliant on ‘gratis’ Secretariat staff seconded by member states.111 This practice was later severely restricted by the General Assembly.112

2.8.5  Categories of staff

15.25  The categories of staff in ascending order of seniority are: General Service (GS)-1, GS-2, GS-3, GS-4, GS-5, GS-6, GS-7; Professional (P)-1, P-2, P-3, P-5, P-5; Director (D)-1, D-2; Senior Appointments ASG, USG, and Secretary-General.113 The heads of Department and Offices of the UN Secretariat are usually at the level of USG or ASG.114 Staff having substantive and managerial functions or providing language services are in the Professional and higher categories.115 Administrative support staff and staff engaged in maintenance, security, or technical assistance are in the General Service category.116 Staff members employed in peacekeeping missions are in the Field Service category.117 Staff members in other categories may take competitive examinations for recruitment to the Professional category.118

(p. 514) 2.9  Conditions of service

15.26  The conditions of service of UN staff reflect the need for securing the highest standards of efficiency, competence, and integrity in recruiting staff, with due regard being paid to equitable geographical distribution, as stated in Article 101 of the UN Charter. The conditions of service for staff in the Professional and higher categories are based on the Noblemaire principle.119 Conditions of service for staff in the General Service and other locally recruited categories are founded on the Flemming principle.120 Specific conditions of service are provided to staff to encourage mobility and service in hardship duty stations.121

2.10  Duration of appointment

15.27  Historically, a large percentage of UN staff has had permanent contracts.122 Security of tenure has been seen as vital to the independence of the International Civil Service.123 However, permanent contracts can also be seen as promoting stagnation and as an obstacle to equitable geographical distribution of staff.124 There is an ongoing (p. 515) debate within the UN as to the tensions between security of tenure and the need to have a flexible and mobile workforce. As part of his reform agenda, Secretary-General Kofi Annan proposed the phasing out of permanent contracts and the establishment of three new contractual arrangements.125 Under Secretary-General Ban, long-term ‘continuing contracts’ were introduced after some resistance from member states.126 Most UN staff in the Secretariat have contracts of one year or longer.127

15.28  While the Secretary-General establishes a normal working week and official holidays for each duty station, the whole time of staff members is at the disposal of the Secretary-General.128

2.11  Remuneration and pensions

15.29  The Secretary-General has the authority to fix the salaries of staff members of the Secretariat.129 Nonetheless, the overall approach to remuneration and the review of salary scales are the responsibility of the General Assembly, with the involvement of the ICSC.130 From the outset, remuneration has been fixed (p. 516) according to the Noblemaire principle.131 The base/floor scale is used for annual adjustments.132 Depending on the status of a staff member, the basic salary may be supplemented with a post adjustment133 and special allowances.134 The remuneration of UN staff members is generally not subject to national taxation, but there is a staff assessment applied to the base salary.135 The UN Joint Staff Pension Fund (UNJSPF) was established by the General Assembly in 1949 and provides retirement, death, disability, and related benefits for UN staff and staff of the other organizations admitted to membership in the Fund.136

(p. 517) 2.12  Personal conduct and disciplinary measures

15.30  The parameters of the ethical conduct expected of UN staff members—independence and integrity—are set out in Articles 100 and 101 of the UN Charter.137 The Staff Regulations and Rules elaborate on the duties and obligations of staff.138 Each staff member must make a solemn declaration to exercise functions in loyalty, discretion, and conscience.139 There has been an effort since 2009 to foster a sense of personal responsibility among Secretariat staff through an Accountability System.140

15.31  Staff members may vote in national elections of their respective countries, but may not actively participate in political activities.141 Staff members shall not accept honours, gifts, or remuneration from any government.142 They must avoid conflicts of (p. 518) interest and outside employment.143 Senior staff must file financial disclosure statements144 and sign annual Accountability Compacts.145 Failure by a staff member to comply with obligations under the UN Charter, the Staff Regulations, Staff Rules, relevant administrative issuances, or the standards of conduct expected of an international civil servant may amount to misconduct.146 The decision to launch an investigation into allegations of misconduct and to impose disciplinary measures is within the discretionary authority of the Secretary-General and officials with delegated authority.147 Disciplinary or administrative measures may be imposed on the staff member,148 who may submit an application challenging the imposition of such measures.149

(p. 519) 2.13  Internal justice

15.32  Conflicts between the UN and its staff are resolved through the internal system of justice.150 For many years the system was criticized for being slow, cumbersome, and biased.151 After a major review, a new system was introduced in July 2009, including a professionalized judicial body of first instance with authority to issue binding decisions, with the UNAT 2 as an appellate tribunal.152 Claims of harassment, discrimination, and abuse of authority are handled through a separate process.153

2.13.1  Informal system

15.33  Staff members are encouraged to use informal channels to resolve disputes.154 Either the staff member with the grievance or the Secretary-General may initiate informal (p. 520) resolution,155 which will be conducted by the Office of the Ombudsman, including mediation.156 A staff member may not file an application with the UN Dispute Tribunal (UNDT) if the dispute arising from a contested decision has already been resolved by an agreement reached through mediation.157

2.13.2  Formal system

15.34  The institutions of the formal internal justice system have been created and amended through resolutions of the General Assembly, even though there is no express provision to this effect in the UN Charter.158 A staff member contesting an administrative decision in the formal justice system may first submit to the Secretary-General a written request for a management evaluation of the administrative decision he/she wishes to challenge.159 The next step may be to file an application with the UNDT, (p. 521) the tribunal of first instance in the two-tier formal justice system.160 The UNDT is composed of three full-time judges in New York, Geneva, and Nairobi, respectively, and two half-time judges.161 In general, cases are decided by a single judge,162 who may order rescission, specific performance, or compensation.163 The judgments of the UNDT are binding upon the parties.164 The staff member or the Secretary-General may appeal a judgment of the UNDT—on certain grounds—to the second tier of the formal system (UNAT 2).165 UNAT 2 is composed of seven judges, who generally sit in New York, with sessions as needed in Geneva and Nairobi.166 The cases are normally reviewed by a panel of three judges and decided by a majority (p. 522) vote.167 The judgments are binding upon the parties and may order rescission, specific performance, or compensation.168 Subject to applications for revision, correction or interpretation, UNAT 2 judgments are final.169 Legal assistance to staff members is provided by professional legal officers in the Office of Staff Legal Assistance (OSLA).170 Unlike with the former UNAT, the Statutes of the UNDT and UNAT 2 do not provide for a procedure for their judgments to be reviewed by the ICJ by way of an Advisory Opinion.171 Nonetheless, for a long time the possibility of ICJ review still existed in the Statute of the Administrative Tribunal of the International Labour Organization (ILOAT).172

(p. 523) 2.14  Safety and security

15.35  International legal protection for UN staff members has developed in a piecemeal manner. The safety and security of UN staff is premised on two principles: that the primary responsibility rests with the host country, and that the UN security management system should be unified, but decentralized to the country level.173 The UN has taken decades to develop a comprehensive approach to staff security; initiatives have been taken after major attacks on UN operations.174 Since 2005, the Department of Safety and Security (DSS) has been mandated to oversee, coordinate, and support the UN security management system.175

(p. 524) 15.36  Staff deployed as members of the military, police, or civilian components of a UN operation, or as officials or experts on mission, are covered by the 1994 Convention on the Safety of United Nations and Associated Personnel.176 The Optional Protocol to the Convention entered into force in August 2010.177

2.15  Staff representative bodies

15.37  Staff representative bodies are intended to maintain contact and communication between the Secretary-General and the staff.178 All staff members assigned to the Secretariat in New York are members of the UN Staff Union, but few staff members are contributing members of the Union.179 Coordination on matters of common interest across the UN System is undertaken by the UN International Civil Servants Federation (UNISERV).180 Negotiations between staff representatives and the UN administration are facilitated by the Staff-Management Coordination (p. 525) Committee (SMCC)181 and the Joint Negotiation Committee at Headquarters (JNC).182

3.  The Secretary-General

15.38  The Secretary-General is the chief administrative officer of the organization183 and performs functions entrusted to him/her by the principal organs.184 Beyond this, the Secretary-General may take political initiatives to maintain international peace and security.185 He/she is independent from any government or any authority external to the organization.186

15.39  The responsibilities of the Secretary-General have increased de facto through mandates given by resolutions of the Security Council and the General Assembly. His/her responsibilities—and those of the Secretariat staff—often go beyond those listed in the UN Charter187 and may also reflect the advancing of his/her own agenda and themes of interest.

(p. 526) 3.1  Appointment

15.40  Article 97 of the UN Charter briefly states that ‘The Secretary-General shall be appointed by the General Assembly upon the recommendation of the Security Council.’188 In practice, the Security Council—in particular the permanent members—has a strong influence over the appointment process.189 Sometimes a Secretary-General has surprised member states with his interpretation of the role.190

15.41  The exact procedure for appointment has had to develop through practice. The ‘recommendation’191 by the Security Council is discussed in private meetings, and the vote may be taken by secret ballot or by acclamation.192 It is a decision that is subject to the veto of the permanent members.193 The President of the Security Council communicates the decision to the President of the General Assembly,194 but no (p. 527) longer officially communicates the recommendation to the person chosen.195 The General Assembly appoints the incoming Secretary-General in a public meeting by acclamation.196 In 2016, the General Assembly passed a consensus resolution submitted by its President, referring to the recommendation of the Security Council, noting also that the selection and appointment process in 2016 was guided by the principles of transparency and inclusivity, including by organizing informal dialogues with all candidates.197

15.42  The 2016 selection process was the most transparent in the history of the UN. General Assembly Resolution 69/321 (2015) set out a number of requests and observations of the General Assembly as to the selection and appointment of the Secretary-General in 2016, including providing member states with comprehensive details on all candidates, and improving the gender and regional balance among candidates.198 The process of selection and appointment also involved the participation of candidates in public debates and informal dialogues with the members of the General Assembly and Security Council.199

(p. 528) 15.43  A number of norms have emerged as to the national origin of the candidate for Secretary-General.200 A proposal in 1960 to replace the post of Secretary-General with a ‘troika’ of three persons was rejected.201

3.3  Re-election

15.45  As with the term of office, the UN Charter is silent as to the possibility of re-election. The possibility of a second term of office was raised in General Assembly Resolution 11(I) (1946) in respect of the first Secretary-General.205 The procedures for the re-election of the Secretary-General have evolved through practice.206 In general, the (p. 529) Security Council makes a recommendation that is approved by the General Assembly by acclamation.207

3.4  Termination of office and extension or replacement

15.46  The resignation of the Secretary-General or the end of his/her term for any reason is not regulated by the UN Charter. The practice has evolved over time, including the extension of the term of Trygve Lie208 and the appointment of Sithu U Thant as Acting Secretary-General.209

3.5  Administrative functions

15.47  The Secretary-General’s administrative functions210 derive from the status of ‘chief administrative officer of the Organization’, provided for in Article 97 of the UN Charter, and his/her support to the principal organs described in Article 98.

3.5.1  Meetings of principal organs

15.48  According to Article 98 of the UN Charter:

The Secretary-General shall act in that capacity [as ‘chief administrative officer of the Organization’] in all meetings of the General Assembly, of the Security Council, of the Economic and Social Council, and of the Trusteeship Council, and shall perform such other functions as are entrusted to him by these organs.

(p. 530) 15.49  The Secretary-General plays an important role in preparing the agenda and documents, notifying the participants, attending the meetings, and following up on the decisions taken by the principal organs. He/she often delegates a representative to attend various meetings.211 He/she has the right to place certain items for consideration on the agenda of UN organs.212 The main duties of the Secretary-General are set out in the Rules of Procedure of each organ.213 The Secretary-General may occasionally take the opportunity of attending meetings of principal organs to make statements on important substantive matters.214

15.50  In addition to his/her personal duties,215 the Secretary-General provides and directs the staff required by the principal organs.216 He/she is responsible for convoking special sessions of the General Assembly at the request of the Security Council or of a majority of the members of the UN.217 The Secretary-General also can participate in meetings of commissions, committees, sub-committees, and subsidiary bodies.218

(p. 531) 15.51  From time to time, the Secretary-General will directly address the staff of the Secretariat through ‘town hall’ meetings that are often broadcast to other UN duty stations. This has been done to celebrate awards, explain reforms, and to mourn the loss of colleagues.219

3.5.2  Communications

15.52  The Secretary-General is the main channel of communication from and to the UN. He/she is responsible for notifying the relevant UN organs of those communications that concern them.220 Tasks include circulating the text of resolutions, discussion protocols, draft conventions, and other documents to member states and other international organizations, receiving their comments, and transmitting them to UN organs.221 The UN Charter assigns specific responsibility to the Secretary-General to notify the General Assembly of matters relating to international peace and security being dealt with by the Security Council.222

3.5.3  Coordination

15.53  The Secretary-General is central to the coordination of the activities of the Secretariat (internal coordination), and to the coordination between the UN and the specialized agencies and intergovernmental bodies (external coordination).223 As regards internal coordination, the Secretary-General is involved in setting the calendar of conferences and meetings,224 planning work programmes and setting priorities, integrating UN (p. 532) activities in various thematic or substantive areas,225 and supervising the services (including documentation) provided to UN organs.226 Internal coordination is facilitated through the Senior Management Group (SMG) and a set of Executive Committees.227 External coordination with the specialized agencies is also the domain of the General Assembly and ECOSOC.228 The Secretary-General nonetheless undertakes external coordination at the request of these organs and in his/her capacity as Chair of the CEB.229

(p. 533) 3.5.4  Finances

15.54  The Secretary-General is responsible for the preparation and implementation of the budget of the organization.230 He/she notifies member states of their assessed contributions and collects such contributions. The Secretary-General instructs UN organs on the financial implications of proposed activities. He/she administers trust funds and special accounts, and supervises the collection of voluntary contributions.231 The Secretary-General may be authorized by the General Assembly to enter into commitments to meet unforeseen and extraordinary expenses, and to borrow money from special funds or governmental sources.232 He/she may also, within limits, restructure the Secretariat by transferring resources within and between Departments and Offices.233

3.5.5  Reporting

15.55  Article 98 of the UN Charter requires the Secretary-General to make an annual report to the General Assembly on the work of the organization.234 In addition, he/she prepares numerous reports and technical studies at the request of the principal organs, or on his/her own initiative to facilitate the work of those organs.235

3.5.6  Human resources

15.56  As chief administrative officer of the organization, the Secretary-General appoints staff, assigns them to posts, directs their work, and issues subsidiary rules on all (p. 534) aspects of human resources management.236 Nonetheless, the General Assembly retains ultimate control over staff matters.237 Although the UN Charter envisages the General Assembly laying down general rules and the Secretary-General applying such rules to specific cases, the General Assembly has increasingly been dealing with the particulars of administering the organization.238 For example, the General Assembly has, through its practice, diluted the Secretary-General’s power over human resources by assuming responsibility in respect of the appointment of certain senior officials and by assigning the power to administer the staff of certain subsidiary organs financed from voluntary contributions to the Executive Heads of these organs.239

3.6  Legal functions

3.6.1  Treaty depositary

15.57  The Secretary-General is the principal depositary of multilateral treaties worldwide.240 The Secretary-General’s policy has been in principle to restrict the assumption of (p. 535) depositary functions to open multilateral treaties of worldwide interest adopted by the General Assembly or concluded by plenipotentiary conferences convened by the UN.241 In practice, the Secretary-General has assigned all depositary functions to the UN OLA.242 The depositary practice is guided by the provisions of the treaty concerned; customary treaty law, including as it may be deemed codified by various conventions on the matter; and the general principles flowing from pertinent resolutions or decisions of the General Assembly and other organs of the UN.243 The practice regarding treaties is publicized on an ongoing basis.244

(p. 536) 15.58  The depositary functions245 include checking the draft final clauses before the adoption of the treaty,246 checking all language versions of the treaty text at the time of adoption, receiving the authentic texts as adopted,247 keeping the original of the treaty, preparing and circulating certified true copies, organizing the ceremony for the opening for signature of the treaty,248 verifying that signatures, instruments, and other communications (including reservations) are in due and proper form,249 and informing the parties and states entitled to become parties, through depositary notifications, of any treaty action250 and of the entry into force of the treaty. The depositary functions can lead to political and legal complications surrounding, for example, declarations,251 reservations,252 succession to treaties,253 (p. 537) and determining which entities are ‘states’ for the purpose of participating in treaties.254

15.59  The Secretary-General also encourages universal participation in treaties.255

3.6.2  Legal advice

15.60  In addition to his/her role as depositary of multilateral treaties, the Secretary-General may be asked by UN organs for advice on procedural or legal questions, and to (p. 538) prepare a legal opinion on specific questions.256 In practice these questions are delegated to the Legal Counsel, and may even come directly to the Legal Counsel or the ASG in the OLA.257 The actual involvement of the Secretary-General in the provision of legal advice is usually minimal.258 Most legal advice is provided by the Office of Legal Counsel and the General Legal Division.259 In recent years, providing advice on legal issues associated with the establishment and operation of ad hoc tribunals has taken up a substantial proportion of the time of the Office of Legal Counsel.260

(p. 539) 15.61  The Secretary-General also has special administrative functions listed in the Statute of the ICJ, including acting as a channel for communication.261

3.6.3  Immunities

15.62  If a court case is brought in a national legal system against a person claiming to be a UN official or an expert on mission for the UN, the Secretary-General determines whether the person does in fact enjoy such a status (or did at the relevant time) and whether he/she enjoys immunity from legal process in respect of the subject matter of that case.262 The Secretary-General specifies the categories of person who are granted immunity from legal process as officials of the UN,263 and he/she has the right and duty to waive the immunity of officials and experts on mission after considering the interests of justice and of the UN.264

(p. 540) 3.7  Representational functions

15.63  The Secretary-General represents the Secretariat, the UN, and, at times, the entire UN System.265 He/she acts on behalf of the organization in legal actions; and he/she may bring an international claim against a government on behalf of the UN,266 or represent the organization before a national court.267 Inter-organization agreements and agreements with member states are also undertaken by the Secretary-General.268 Agreements relating to peacekeeping forces are concluded under the Secretary-General’s authority.269 The Secretary-General also represents the UN by receiving the credentials of members of delegations.270

3.8  Political functions

15.64  Article 99 of the UN Charter provides: ‘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.’271 This forms the basis for much of (p. 541) the Secretary-General’s political functions.272 In practice, Secretaries-General have expressly invoked Article 99 on very rare occasions.273 Article 99 has given informal authority to the Secretary-General to engage in political functions to maintain international peace and security.274 The Secretary-General has also performed political (p. 542) functions within the scope of assignments under Article 98.275 Exercising the powers under Article 99 requires the Secretary-General to have access to intelligence information and early-warning systems.276

15.65  The suggestion has been made that it would enhance the Secretary-General’s dispute settlement role if he/she were empowered to request an Advisory Opinion from the ICJ.277 This has not been realized.278