1. In many cases, the initiatives that the UN Secretary-General has taken in the use of 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 Supplement No. 5, Vol. 5 under Art. 98, paras. 48–64. In other cases, the initiatives have been in the human rights area. For an account of the inherent powers activities carried out from the outset to 31 December 1979, see Repertory of Practice of United Nations Organs, Vol. 5, under Art. 98, para. 106, and the five supplements thereto, as follows: Supplement No. 1, Vol. 2, under Art. 98, paras. 47–58; Supplement No. 2, Vol. 3, under Art. 98, paras. 253–313; Supplement No. 3, Vol. 4, under Art. 98, paras. 662–709; Supplement No. 4, Vol. 2, under Art. 98, paras. 288–325; and Supplement No. 5, Vol. 5, under Art. 98, paras. 668–762. For information concerning specifically fact-finding activities, see GAOR, twentieth Session, Annexes, agenda items 90 and 94, A/5694, paras. 313–328. See also Gordon, E., ‘Resolution of the Bahrain Dispute’, 65 AJIL (1971) p. 560CrossRefGoogle Scholar; Ramcharan, B.G., ‘The Good Offices of the Secretary-General of the United Nations in the Field of Human Rights’, 76 AJIL (1982) p. 130Google Scholar; Franck, T.M., ‘The Role and Future Prospects of the Secretary-General’, in The Adaptation of Structures and Methods at the United Nations, Workshop, The Hague 4–6 November 1985 (1986) pp. 81–90Google Scholar; see also, Cordovez, D. and Elaraby, N. in The United Nations and the Maintenance of International Peace and Security (1987)Google Scholar and Caminos, H. and Lavalle, R., ‘New Departures in the Exercise of Inherent Powers by the UN and OAS Secretaries-General: the Central American Situation’, 83 AJIL (1989) p. 395CrossRefGoogle Scholar. Needless to say, there can often be room for disagreement as to exactly where the line should be drawn between political initiatives, on the one hand, and initiatives in the humanitarian or human rights areas, on the other.

2. Although he does not appear to have done so yet, there seems to be no reason why, in exercising the powers in question, the Secretary-General could not, in the absence of objections by the government(s) concerned, establish contacts with entities other than governments, as he has often done when acting on his own in the human rights and humanitarian spheres.

3. There have been cases where, although a certain political action by the Secretary-General is not based on a mandate, express or implied, the General Assembly or the Security Council has taken a prior position on the dispute or situation to which the action relates and that position can be regarded as an incentive to the action. This occurred recently with respect to the situation in Central America. Resolutions adopted by the General Assembly and the Security Council between 1983 and 1986 expressed support for the process to promote peace in the region that was being carried on by a group of Latin American States, but without asking the Secretary-General to take any substantive action. The Secretary-General, acting under his autonomous powers, lent support to that process. (Cf., Caminos, and Lavalle, , loc. tit. n. 1, pp. 397–398)Google Scholar. In such cases one could consider that the Secretary-General has exercised his autonomous powers pursuant to a ‘political’ mandate, in the absence of which he might have refrained from acting. It may also occur that, before taking action of a political nature in the absence of a formal mandate, he has consulted or sounded out the members of the Security Council regarding the action and ascertained that they do not object to it. This case can perhaps be regarded as another instance of the ‘political’ mandate (GAOR XV, Supplement 1A, p. 3, right-hand column, and Bailey, S.D., The Secretariat of the United Nations (1962) p. 41)Google Scholar. The same is true of any situation where the Secretary-General spells out before the Security Council or the General Assembly measures he intends to take in the political sphere without eliciting any reaction, whether from the organ as a whole or any individual member. (For an example of this, see Bailey, , supra p. 40Google Scholar.)

4. That the Secretary-General is to act pursuant to a mandate does not necessarily mean that he lacks discretion. For one thing, a mandate could, conceivably, provide that the Secretary-General is to give effect to it only if he deems it advisable to do so. Moreover, it often occurs that a political mandate is formulated so generally or vaguely as to leave the Secretary-General with considerable leeway for the exercise of discretion in its fulfilment.

5. In June 1986 the Governments of France and New Zealand asked the Secretary-General to issue a ‘ruling’ on the dispute that had arisen between them concerning the Rainbow Warrior incident, agreeing in advance to abide by the ruling. The Secretary-General, having acceded to the request, handed the two Governments the text of his ruling in July 1986. (See United Nations press releases SG/SM/3883 and SG/SM/3889, of 19 June and 7 July 1986.) Although it would seem clear that the Secretary-General's intervention cast him in the role of an arbitrator, at a press conference held on 30 June 1986, he was less than clear-cut on the matter, referring, in connection with it, to his ‘role of mediation or arbitration’. (See press release SG/SM/3886 of 1 July 1986, pp. 3–4.)

6. The Secretary-General broke new ground in 1987, with regard to the Central American situation, by accepting, on his own authority, membership in an international control body. (See Caminos, and Lavalle, , loc. tit. n. 1, p. 400Google Scholar.)

7. For instance, the action the Secretary-General took, in 1970, with respect to Bahrain involved good offices and fact-finding. See Repertory of Practice of United Nations Organs, Supplement No. 5, Vol. 5, under Art. 98, paras. 703 and 712Google Scholar. An example of a sui generis autonomous activity is provided by the Secretary-General's intervention, in 1983, in a dispute between Guyana and Venezuela. His function in that connection was to provide assistance to the two Governments concerned in the choice of a means of settling the dispute peacefully (see UN press release SG/SM/3461).

8. An appeal may, however, involve the Secretary-General in the substance of the problem addressed by serving as a vehicle for concrete recommendations on how to solve it. An example of this is provided by the Secretary-General's appeals to the Governments of the United States and the Soviet Union regarding the Cuban missile crisis. (Repertory of Practice of United Nations Organs, Supplement No. 3, Vol. 4, under Art. 98, para. 672.)

9. The offer may be contained in an appeal. An example of this modality is provided by the appeals to the United States and the Soviet Union referred to in the preceding note.

10. See Repertory of Practice of United Nations Organs, Supplement No. 4, Vol. 2, under Art. 98, paras. 298–299. A request to the Secretary-General by a government wishing to send a communication to another one would normally appear to be sufficient to allow him to transmit the communication if he considers it wise to comply with the request.

11. See Repertory of Practice of United Nations Organs, Supplement No. 3, Vol. 4, under Art. 98, para. 701; Supplement No. 4, Vol. 2, under Art. 98, paras. 311–312; and Supplement No. 5, Vol. 5, under Art. 98, paras. 693–694.

12. The subject has been dealt with either from a purely political perspective or in a manner that appears legal inasmuch as the Charter or certain of its provisions (particularly Art. 99) are invoiced but is without the close reasoning essential to legal analysis.

13. The official title of the Declaration is ‘Declaration on the Prevention and Removal of Disputes and Situations which may Threaten International Peace and Security and on the Role of the United Nations in this Field’. It is annexed to res. 43/51, adopted by the General Assembly, on the report of its Sixth Committee and without a vote, on 5 December 1988. The Declaration is based on a draft declaration prepared and adopted unanimously by the Special Committee on the Charter of the United Nations and the Strengthening of the Role of the Organization, the report of which (UN Doc A/43/886) was before the Sixth Committee at the Forty-Third Session of the Assembly. The draft declaration was adopted by the Sixth Committee without a vote and without amendments. Nor were any amendments made to it by the plenary.

14. Report of the Preparatory Commission of the United Nations, PC/20, 23 December 1945, Chap. VIII, Section 2, Sub-section B.

15. It is under this title that the Supplements to the Repertory of Practice of United Nations Organs have dealt with the autonomous activities of the Secretary-General.

16. Since it is clear that nothing precludes the Secretary-General being, under Art. 98 of the Charter, entrusted with political functions, this article implicitly empowers him to perform such functions of this type as may be entrusted to him thereunder. This appears to be borne out by the above-quoted passage from the report of the Preparatory Commission. Since the Security Council is hardly in a position to carry out entirely by itself the investigative activity to which Art. 34 of the Charter refers, it would appear that under this article the Secretary-General may be entrusted with fact-finding functions by the Security Council.

17. According to one author, the power conferred on the Secretary-General by Art. 99 ‘constitutes, particularly when blended with Article 98, the broad legal base for the Secretary-General's political personality’. (See Schwebel, S.M., The Secretary-General of the United Nations. His Political Powers and Practice (1952) p. 24)Google Scholar. This is true, but, for the reason given in the text, cannot be relied upon as a basis for his autonomous powers. Although the Covenant of the League of Nations lacked a provision similar to Art. 99 of the Charter, the first Secretary-General of the League took important political initiatives on his own authority (although only behind the scenes and with no subsequent publicity). One can therefore be tempted to argue that if, having, to borrow Schwebel's term, a less pronounced political personality than the United Nations Secretary-General, he was able to take political action on his own authority, then a fortiori the United Nations Secretary-General should be able to do likewise. But, whatever its persuasiveness on the political level, this argument is legally worthless. For one does not see why the interpretation of the Covenant and the practice under it should have any bearing on the interpretation of, and the practice under, the United Nations Charter.

18. Cf., the statement made by the Secretary-General before the Security Council on 20 September 1946, at the Council's 70th meeting. (SC, Official Records, First Year, Second Series, p. 405). In public pronouncements the Secretary-General has fairly often cited Art. 99 as the source of his autonomous powers. Cf., for example, the press conference he gave on 20 September 1982, the subject of press release SG/SM/3342 of 20 September 1989, p. 2.

19. A unit of the United Nations Secretariat entitled ‘Office for Research and the Collection of Information’ provides the Secretary-General with information from public sources capable of facilitating the prevention of conflicts. See, on p. 4 of press release SG/SM/4291, the comments made by the Secretary-General on this unit in the course of an address he delivered in April 1989. See also press release SG/SM/3648, p. 4.

20. Cf., the passage from the Introduction to the Annual Report of the Secretary-General on the Work of the Organization submitted to the General Assembly at its Twenty-Fourth Session quoted in Repertory of Practice of United Nations Organs, Supplement No. 4, Vol. 2, under Art. 98, para. 318. In a speech delivered in 1971, the Secretary-General appears to have based his autonomous powers to perform good offices functions, at least partly, on Art. 33 of the Charter. (Cf., Supplement No. 5 to the Repertory of Practice of United Nations Organs, Vol. 5, under Art. 98, para. 714.)

21. It goes without saying that the Security Council or the General Assembly, if officially informed of action taken by the Secretary-General under his autonomous powers, may approve the action. For an example of such approval, see GA res. 42/1 of 7 October 1987, in para. 4 of which the General Assembly approved action that the Secretary-General had undertaken under his autonomous powers with regard to the Central American situation. Such an approval retroactively brings action originally undertaken under the autonomous powers within the scope of Art. 98 of the Charter.

22. Some of the representatives whom the Secretary-General has appointed to undertake autonomous activities on his behalf have been styled ‘personal representatives’; moreover, he has referred, in the case concerning Thailand to be mentioned later on, to his authority to undertake those activities as his ‘personal authority’.

23. This would be true only of complete divestiture. In respect of any given dispute or situation, the General Assembly or the Security Council may, whatever the legal basis of the autonomous powers may be, deprive the Secretary-General of all or part of them in that respect by either entrusting to him, under Art. 98 of the Charter, functions relating to the dispute or situation or instructing him not to intervene. Moreover, if the Secretary-General takes an initiative in any situation that has been or becomes the object of a decision or a recommendation by either organ he must act in such a way as not to set himself at odds with the decision or recommendation.

24. This presupposes, of course, the possibility of determining, on the basis of the text or the travaux préparatoires of the Charter, the precise extent of the autonomous powers, a presupposition that, admittedly, is altogether unrealistic.

25. See Repertory of Practice of United Nations Organs, Supplement No. 4, Vol. 2, under Art. 98, paras. 313–319; and Supplement No. 5, Vol. 5, under Art. 98, para. 711.

26. Since the vote was not by roll-call, the identity of the two States that did not go along with the majority is unknown. But the vote in the First Committee on the draft that was to become res. 2734 (XXV) was unanimous except for South Africa, which voted against, and Portugal, which abstained. (GAOR, Twenty-Fifth Session, Annexes, a.i. 32, A/8096, para. 18.) It is therefore very likely that these two States were the odd men out in the plenary. And it is highly improbable that their attitude was dictated by the reference, in the draft resolution, to the good offices function of the Secretary-General.

27. Repertory of Practice of United Nations Organs, Supplement No. 5, Vol. 5, under Art. 98, para. 712.

28. The Secretary-General may finance autonomous activities by using the power the General Assembly normally grants him every two years, in connection with unforeseen and extraordinary expenses, to enter, up to a certain ceiling, into commitments that he certifies as relating to the maintenance of peace and security. (The latest resolution in this series is General Assembly resolution 44/203 of 21 December 1989, para. l(a) of which authorises the Secretary-General to make commitments in this manner up to the amount of $ 3 million).

29. In 1964 the Secretary-General, having been requested by three Governments to designate a certain other Government that the former wished to entrust with the function of supervising a cease-fire between them, turned the request down. He based his denial, however, not on legal grounds but on considerations of expeditiousness and practicality. (See Repertory of Practice of United Nations Organs, Supplement No. 3, Vol. 4, under Art. 98, para. 700). Given the very sui generis character of this case, the manifest unreasonableness of the request and the fact that the Secretary-General did not rely on considerations of a legal nature to deny it, the precedent should not be regarded as marking a limit to the exercise of the Secretary-General's autonomous powers.

30. Repertory of Practice of United Nations Organs, Supplement No. 3, Vol. 4, under Art. 98, para. 703.

31. Security Council, Supplement for July–September 1980, S/14046.

32. Ibid., S/14058.

33. The minicode is blemished by the obscurity of the second sentence of para. 22, with respect to which the travaux préparatoires are unhelpful. Fortunately, however, this sentence appears to be redundant. Para. 24 appears to be inspired by the Secretary-General's role in the Central American situation.

34. As pointed out in n. 3 supra, the terms of a mandate may well confer discretion on the Secretary-General as to whether or not he should take action under that mandate.

35. Cf., the Preliminary Report by Skubiszewski, K. on resolutions of the General Assembly of the United Nations, in 61 Yearbook of the Institute of International Law (1985) Part I, pp. 58–59Google Scholar.

36. Statements by the representatives of Czechoslovakia (A/C.6/43/SR.15, para. 16), the Ukranian SSR (ibid., para. 78) and Nepal (A/C. 6/43/SR.19, para. 16).

37. A/C.6/43/SR.14, para. 5.

38. Statements by the representatives of Italy (A/C.6/43/SR.14, para. 18), Morocco (A/C.6/43/SR.19, para. 46) and Iran (ibid., para. 21).

39. Statements by the representatives of Mexico (A/C.6/43/SR.14, para. 81), Egypt (A/C.6/43/SR.16, para. 18), Spain (ibid., para. 64), Senegal (ibid., para. 76) and the United States (A/C.6/43/SR.20, para. 36).

40. Press release SG/SM/4124 of 20 April 1988, p. 7. The draft declaration had just been adopted by the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization.

41. A/C.6/43/SR.20, para. 36.