1 As examples of statements by Soviet representatives see: U.N. General Assembly, 15th Sess., Official Records, 869th Meeting, pp. 82–83 (1960) (by Chairman Khrushchev) ; Review of the Activities and Organization of the Secretariat, Report of the Committee of Experts appointed under General Assembly Res. 1446 (XIV), Appendix I (A/4776) (June 14, 1961), Separate Opinion by Mr. A. Roshchin, Soviet Expert, Appended to the Report of the Committee of Experts.

2 On Sept. 19–20, 1960, the Fourth Emergency Special Session of the General Assembly adopted an African-Asian resolution (Res. 1474 (ES IV)) by vote of 70 to 0, with 11 abstentions, which in part “[R]equests the Secretary-General to continue to take vigorous action in accordance with the terms of the aforesaid resolutions [i.e., Security Council resolutions of July 14 and 22, and August 9, 1960] and to assist the Central Government of the Congo in the restoration and maintenance of law and order throughout the territory of the Republic of the Congo and to safeguard its unity, territorial integrity and political independence in the interests of international peace and security.” U.N. General Assembly, 4th Emergency Spec. Sess., Official Records, Supp. No. 1, p. 1 (Doc. A/4510) (Sept. 20, 1960); ibid., 863rd Meeting, p. 102 (Sept. 19, 1960).

On April 15, 1961, a resolution reaffirming the United Nations operation in the Congo was adopted by vote of 60 to 16, with 23 abstentions. U.N. General Assembly, 15th Sess., 985th Meeting, Doe. A/P.V. 985 (1961) (Provisional). The resolution (Res. 1600 (XV)) provided in part:

“ [The General Assembly . . .] Considers it essential that necessary and effective measures be taken by the Secretary-General immediately to prevent the introduction of arms, military equipment and supplies into the Congo, except in conformity with the resolutions of the United Nations. . . . “A separate vote was taken on the retention of the words “b y the Secretary-General.” The vote, viewed as a vote of confidence in the Secretary General, was 83 to 11, with 5 abstentions, in favor of retaining the specific reference to the Secretary General. Ibid.

3 The Organization of the Secretariat at the Under Secretary Level, Report to the Secretary General by three past Presidents of the General Assembly: Mr. Lester B. Pearson (Canada), President of the Seventh Session, Prince Wan Waithayakon (Thailand), President of the Eleventh Session, and Dr. Victor Belaunde (Peru), President of the Fourteenth Session, in Report of the Committee of Experts (note 1 above), Annex I, p. 15.

4 Ibid. at 16.

5 Ibid. at 24–35.

6 For example, after Mr. Khrushchev’s statement to the General Assembly on Sept. 23, 1960, Mr. Hammarskjold stated before that body:

“ [T]his is a question not of a man but of an institution. Use whatever words you like, independence, impartiality, objectivity—they all describe essential aspects of what, without exception, must be the attitude of the Secretary-General. . . . [I]f the office of the Secretary-General becomes a stumbling block for anyone, be it an individual, a group or a government, because the incumbent stands by the basic principle which must guide his whole activity, and if, for that reason, he comes under criticism, such criticism strikes at the very office and the concepts on which it is based. I would rather see that office break on strict adherence to the principles of independence, impartiality and objectivity than drift on the basis of compromise. . . . “U.N. General Assembly, 15th Sess., Official Records, 871st Meeting, p. 95 (Sept. 26, 1960).

See also TJ.N. Security Council, 16th Year, Official Records, 935th Meeting, Doc. S/P.V. 935 (Feb. 15, 1961) (Provisional), for Mr. Hammarskjold’s reply to a Soviet demand for his resignation in the aftermath following the death of Mr. Lumumba. On June 30, in a comment on the Report of the Committee of Experts (note 1 above), Mr. Hammarskjold stated:

“ As to the proposal that the Secretariat be composed of equal numbers of nationals of three political groups of States, the Secretary-General observes that many of the States included in one or the other category may not wish to be thus labelled. Apart from this, it is obvious that such a proposal runs counter to the Charter. Secretariat representation that would be determined by political or ideological groupings would be unrelated to geographical distribution. Nor could it be justified on grounds of equity.” TJ.N. Doc. A/4794, p. 11 (June 30, 1961).

7 ‘‘ The International Civil Servant in Law and in T act, “Address by U.N. Secretary-General Dag Hammarskjold at Oxford University, May 30, 1961, U.N. Press Release SG/1035 (May 29, 1961). For other expressions of Mr. Hammarskjold’s philosophy, see Hammarskjold, “Towards a Constitutional Order,” in Perspectives on Peace 1910– 1960, p. 65 (Carnegie Endowment for International Peace, 1960) ; Introduction to the Annual Report of the Secretary General on the Work of the Organization, June 16, 1959—June 15, 1960, U.N. General Assembly, 15th Sess., Official Records, Supp. No. 1A (A/4390/Add. 1) (1960); Introduction to the Annual Report of the Secretary General on the Work of the Organization, June 16, 1960–June 15, 1961, U.N. General Assembly, 16th Sess., Official Records, Supp. No. 1A (A/4800/Add.1) (1961).

8 Art. 6 of the Covenant of the League of Nations provides:

“ 1. The permanent Secretariat shall be established at the Seat of the League. The Secretariat shall comprise a Secretary-General and such secretaries and staff as may be required. “

2. The first Secretary-General shall be the person named in the Annex; thereafter the Secretary-General shall be appointed by the Council with the approval of the majority of the Assembly. “

3. The secretaries and staff of the Secretariat shall be appointed by the Secretary- General with the approval of the Council. “

4. The Secretary-General shall act in that capacity at all meetings of the Assembly and of the Council.. .. “See also Arts. 7, 11 and 15.

9 Art. 1, par. 1, of the Staff Regulations of the League of Nations states:

“ 1. The officials of the Secretariat of the League of Nations are exclusively international officials and their duties are not national, but international. By accepting appointment, they pledge themselves to discharge their functions and to regulate their conduct with the interests of the League alone in view. They are subject to the authority of the Secretary-General, and are responsible to him in the exercise of their functions, as provided in these Regulations. They may not seek or receive instructions from any Government or other authority external to the Secretariat of the League of Nations.” Aufricht, Guide to League of Nations Publications 440 (1951).

10 U.N. Charter, Art. 101, pars. 1 and 3, provides:

“ 1. The staff shall be appointed by the Secretary-General under regulations established by the General Assembly.

...

“ 3. The paramount consideration in the employment of the staff and in the determination of 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.’’

11 U.N. Charter, Art. 100, provides:

“ 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. They shall refrain from any action which might reflect on their position as international officials responsible only to the Organization.

“ 2. Each Member of the United Nations 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.’’

Mr. Hammarskjold suggested that the League experience with the German Nazis and Italian Fascists demonstrated the desirability of including in the Charter an exact obligation along the lines of Art. 100. Mr. Hammarskjold also pointed out that a proposal in the Preparatory Commission in London that appointments of officials should be subject to the consent of the Member government of which the candidate was a national was rejected by a great majority and the Commission stressed that the Secretary General “alone is responsible to the other principal organs for the Secretariat’s work.” Preparatory Commission of the U.N., Report, p. 86 (PC/20) (1945). Mr. Hammarskjold believed that the description in Art. 97 of the Secretary General as “the chief administrative officer of the Organization” —a phrase not found in the Covenant, though probably implicit—makes it an explicit constitutional requirement that the administration shall be left to the Secretary General. Cf. also Art. 105 providing for granting officials of the Organization necessary privileges and immunities which, Mr. Hammarskjold pointed out, reinforces the principle of exclusive international responsibility and independence of the Secretariat from national pressures.

12 U.N. Charter, Art. 97, provides: “The Secretariat shall comprise a Secretary-General and such staff as the Organization may require. The Secretary-General shall be appointed by the General Assembly upon the recommendation of the Security Council. He shall be the chief administrative officer of the Organization.”

18 U.N. Charter, Art. 99, 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.’’

14 For examples of a broad interpretation of the Secretary General’s political powers, see: Ford, A., in Wortley, The United Nations—The First Ten Years 84–85 (1957)Google Scholar; Schwebel, , The Secretary-General of the United Nations 24–30 (1952)Google Scholar; Nicholas, The United Nations as a Political Institution 153–154 (1959); Boss, Constitution of the United Nations 104 (1950); Bailey, , “The Secretary-General of the United Nations,” 17 The World Today 2 (Jan., 1961)Google Scholar; Lauterpacht, International Law and Human Bights 187 (1950); Kunz, , “The Legal Position of the Secretary-General of the United Nations,” 40 A.J.I.L. 786, at 790–792 (1946)Google Scholar; Simmonds, , “‘Good Offices’ and the Secretary-General,” 29 Nordisk Tidsskrift for International Bet 330, at 336–340 and 342–343 (1959)Google Scholar; Kopal, , “K pokusům o změnu postavení, struktury a dělby funkcí Rady bezpečnosti, Valného shromázdění a generálního tajemmíka v soustavě OSN,” 8 Právnické Štúdie 470, at 492–493 (Bratislava, 1960)Google Scholar; Virally, , “Vers une Réforme du Secrétariat des Nations Unies?”, 15 International Organization 236 (1961)CrossRefGoogle Scholar; id., “Le Rôle Politique du Secrétaire Général des Nations Unies,” 4 Annuaire Francais de Droit International 360 (1958).

But see Kelsen, The Law of the United Nations 304 (1950). Prof. Kelsen’s viewpoint is criticized in Schwebel, , “The Origin and Development of Article 99 of the Charter,” 28 British Tear Book of International Law 371, at 380, note 2 (1951)Google Scholar. Specifically on the Secretary General’s power to investigate, see note 41 below. Judge Krylov refers to the Secretary General as “a political figure” (“ politichesky deyat e l “), Krylov, Materialy k Istorii Organizatsii Ob’edinennykh Natsii at 56 (1949).

15 U.N. Charter, Art. 98, provides: “The Secretary-General shall act in that capacity 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. The Secretary-General shall make an annual report to the General Assembly on the work of the Organization.”

16 Draft Constitution of International Organization, Arts. 4 and 10, in Postwar Foreign Policy Preparation, 1939–1945, p. 472, at pp. 474, 478 (U. S. Dept. of State Pub. 3580, General Foreign Policy Series 15) (1949).

17 Russell and Muther, A History of the United Nations Charter 373–375 (1958).

18 Ibid, at 375–376.

19 [United States] Tentative Proposals for a General International Organization, Ch. X, in Postwar Foreign Policy Preparation, 1939–1945 (cited note 16 above), p. 595, at p. 605.

20 Russell and Muther, op. cit. note 17 above, at 432.

21 Great Britain, A Commentary on the Dumbarton Oaks Proposals for the Establishment of a General International Organization 11, quoted in Russell and Muther, ibid.

22 [The Dumbarton Oaks] Proposals for the Establishment of a General International Organization, Ch. X, in Postwar Foreign Policy Preparation, 1939–1945 (note 16 above), p. 611, at pp. 618–619:

“ 1. There should be a Secretariat comprising a Secretary-General and such staff as may be required. The Secretary-General should be the chief administrative officer of the Organization. He should be elected by the General Assembly, on recommendation of the Security Council, for such term and under such conditions as are specified in the Charter.

“ 2. The Secretary-General should act in that capacity in all meetings of the General Assembly, of the Security Council, and of the Economic and Social Council and should make an annual report to the General Assembly on the work of the Organization.

“ 3. The Secretary-General should have the right to bring to the attention of the Security Council any matter which in his opinion may threaten international peace and security.’’

23 Professor Schwebel notes that at the time of the Iranian case in 1946, a restrictive interpretation of this clause “has been bruited about informally” along the following lines: “If the Secretary-General is to perform such other functions as are entrusted to him, it could be held that he is not to assume any functions relating to the activities of these organs not so entrusted to him.” Schwebel, The Secretary-General etc., op. cit. note 14 above, at 29. A somewhat similar interpretation was mentioned in newspaper reports from Paris at the time of the French-Tunisian conflict in July, 1961. New York Times, July 28, 1961, p. 4, col. 6.

24 Committee 1/2 recommended that the language of Art. 98 should be kept sufficiently broad to cover all the functions of the Secretariat. 7 U.N.C.I.O. Docs. 391 (1945). A subcommittee report spoke of “political as well as administrative” functions. See Kelsen, op. cit. note 14 above, at 302, note 8.

26 Schwebel, The Secretary-General etc., op. cit. note 14 above, at 19–21. The three proposals mentioned in the text were: (1) that the Secretary General should have the duty, not only the right to bring threats to peace before the Security Council; the motion to this effect was not accepted, 7 U.N.C.I.O. Docs. 392, 556 (1945); (2) that the Secretary General should have a right to bring matters which threaten international peace not only before the Security Council but also before the General Assembly, as was originally contemplated by the United States, Russell and Muther, op. cit. note 17 above, at 432. The amendment to this effect was rejected. The opponents of the amendment argued that it would impose upon the Secretary General the burden of a difficult choice between the two organs and perhaps impinge upon the Security Council’s primary responsibility, 7 U.N.C.I.O. Docs. 162–163, 168–169, 392–393 (1945); Goodrich and Hambro, Charter of the United Nations 502 (1949). For a criticism of the rejection of this amendment, see Kelsen, op. cit. note 14 above, at 303; (3) that the Secretary General be entitled to bring before the Security Council matters which would not necessarily threaten the peace but would constitute violations of the Charter principles, including, according to some proponents, domestic infringements, 7 U.N.C.I.O. Docs. 162–163, 168–169, 392–393 (1945). This proposal, which the opponents argued would vest the Secretary General with wider authority than had been given to Members, was defeated in Committee 1/2 by a vote of 16 to 13. Ibid, at 168–169.

26 Schwebel, The Secretary-General etc., op. cit. note 14 above, at 21.

27 Russell and Muther, op. cit. note 17 above, at 854–860; Schwebel, The Secretary- General etc., op. cit. note 14 above, at 19. Mr. Hammarskjold argued in his address that, precisely because the Secretary General was charged with political functions, the San Francisco Conference rejected the proposals to eliminate the participation of the Security Council (acting under the unanimity rule) from the procedure for his election, 11 U.N.C.I.O. Does. 568–571 (1945), as well as a proposal for a three-year term, considered too short to assure his independent position, 7 ibid. 279–281 (1945); again, the Conference rejected proposals, mirroring in some measure the idea of a Cabinet system, for Deputy Secretaries General, to be appointed in the same manner as the Secretary General, who would not be responsible to the Secretary General but to the bodies which elected them, ibid. 280–281 (1945).

28 Report, note 11 above, at 87. For an analytical summary of practice in the application of Arts. 98–99, including the relevant rules of procedure of U.N. organs, see 5 Repertory of United Nations Practice, particularly pp. 156–162, 176–177 (1955) and Supp. No. 1, Vol. II, particularly pp. 372–381 (1958).

29 Mr. Hammarskjold recalled that this problem assumed critical proportions in 1952 and 1953 when the U. S. Government “conducted a series of highly publicized investigations of the loyalty of its nationals in the Secretariat.. .. [A]s a result of the stand taken by the Organization,” the principle of Art. 100, par. 1, “was recognized by the United States Government in the procedures it established for hearings and submission of information to the Secretary-General regarding U. S. citizens.” U.N. Press Release, note 7 above, at 12.

30 Report of the Committee of Experts, note 1 above, at 20.

31 Ibid, at 12.

32 Ibid. at 19.

33 U.N. Press Release, note 7 above, at 15–16.

34 For a more detailed account, see Jackson, , “The Developing Eole of the Secretary-General,” 11 International Organization 431 (1957)Google Scholar; for an illuminating account of the U. N. action in the Congo during the period from July 14 to Sept. 20, 1960, see Miller, “Legal Aspects of the United Nations Action in the Congo,” 55 A.J.I.L. 1 (1961).

35 U.N. Press Release, note 7 above, at 19–20.

36 E.g., Mr. John Foster Dulles, in U.N. General Assembly, 2d Sess., Official Records, 1st Comm., pp. 78, 172–173 (Oct. 18, 1947); B. V. Cohen, The United Nations—Constitutional Developments, Growth, and Possibilities at 15–19 (1961).

37 Res. 377A (V) of Nov. 3, 1950, U.N. General Assembly, 5th Sess., Official Records, Supp. No. 20, pp. 10–12 (Doc. A/1775) (1950).

38 U.N. Security Council, 11th Tear, Official Records, 751st Meeting, pp. 2–4, 22 (Oct. 31, 1956); Repertoire of the Practice of the Security Council, Supp. 1956–1958, p. 76 (1959).

39 U.N. Security Council, 13th Tear, Official Records, 838th Meeting, pp. 8–9 (Aug. 7, 1958); Repertoire of the Practice of the Security Council, Supp. 1956–1958, pp. 76–77 (1959).

40 Mr. Lie served from 1946 to 1953.

41 When the Security Council was discussing the first Greek question submitted by the Ukrainian S.S.E. in 1946, the Secretary General made the following statement: “Just a few words to make clear my own position as Secretary-General and the rights of this office under the Charter. Should the proposal of the United States representative not be carried, I hope that the Council will understand that the Secretary-General must reserve his right to make such enquiries or investigations as he may think necessary, in order to determine whether or not he should consider bringing any aspect of this matter to the attention of the Council under the provisions of the Charter.”

It is interesting that the representative of the U.S.S.R. replied as follows: “As the representative of the Union of Soviet Socialist Republics I would like to say the following in connexion with the statement made by the Secretary-General. I think that Mr. Lie was right in raising the question of his rights. It seems to me that in this case, as in all other cases, the Secretary-General must act. I have no doubt that he will do so in accordance with the rights and powers of the Secretary-General as defined in the Charter of the United Nations.” U.N. Security Council, 1st Year, Official Records, 70th Meeting, p. 404 (Sept. 20, 1946).

42 U.N. General Assembly, 5th Sess., Official Records, 289th Meeting, p. 176 (1950).

43 Goodrich, The United Nations 140 (1960).

44 U.N. General Assembly, 1st Emergency Spec. Sess., Official Records, Annexes, Agenda Item No. 5, at p. 6 (A/3272) (1956), ibid, at pp. 6–7 (A/3273) (1956); for a statement of the U. S. position by Mr. Lodge, see U.N. General Assembly, 1st Emergency Spec. Sess., Official Records, 563rd Meeting, pp. 46–48 (Nov. 3, 1956).

45 Cf., for instance, the following statement by Mr. Sobolev, the representative of the U.S.S.R., during the Suez problem discussion: “May I begin by saying that the Soviet delegation has confidence in the Secretary-General of the United Nations and lends him its support.” U.K. Security Council, 11th Year, Official Records, 751st Meeting, p. 2 (Oct. 31, 1956).

46 Korovin, , “Ways of Reorganizing the U.N. Executive Organs,” 6 International Affairs 7, at 9 (December, 1960)Google Scholar.

47 See, e.g., the Secretary General’s statement in U.N. Security Council, 15th Year, 920th Meeting, S/P.V. 920 (Dec. 13, 1960) (Provisional).

48 Ibid.

49 Envisaging the possibility that his mandate might be broadened, Mr. Hammarskjold said:

“I would further invite the Council to consider such arrangements as would mean that Member nations would assume formally their part of the responsibility for the policy pursued from day to day in the Congo. This does not mean that the operations of the Secretary-General or his special representative should be put under some kind of stultifying control of a parliamentary body; conditions do not permit such a policy. Nor does it mean, from my side, any reservations as regards the extremely useful activities of the Advisory Committee, the members of which, however, do not carry any formal responsibility for the policy pursued. .. “Ibid.

50 Guins, Soviet Law and Soviet Society 32 (The Hague, 1954); Karewa, Recht und Moral in der Sozialistischen Gesellschaft, Chs. I I and III(Berlin, 1954); Lapenna, Conceptions Soviétiques de Droit International Public 56–58 (Paris, 1954). For a survey of the evolution of Soviet legal thought, see Grzybowski, Doctrines of Soviet Legal Institutions, Ch. I (Parallels and Analogies) and Ch. IV (Be-education) (scheduled for publication by the Michigan University Law School in 1962). For the attitude of the U.N. Secretary General on “the gulf between East and West,” see Bloomfield, The United Nations and U. S. Foreign Policy 125 (1960).

51 The following argument by Professor Korovin, seeking to refute the paralyzing effect of the “triumvirate” proposal, is not very convincing:

“In reality, however, the assertion that the work of a collective U.N. Secretariat would inevitably be paralyzed by a ‘veto’ of one of its three members is completely unfounded. The Soviet proposal for a collegiate Secretariat contains no special ‘veto’ right. The equal position of members of any collegiate body makes it incumbent upon them to seek agreed and mutually acceptable decisions. If agreed decisions on questions of principle are not achieved in the General Secretariat, then it should be remembered that the Secretariat itself is only the executive organ of the Security Council and General Assembly (Article 97 of the Charter). Hence, in the absence of agreement within the General Secretariat, the final word remains with these two leading bodies of the U.N.” Korovin, loo. cit. note 46 above.

52 Introduction to the Annual Report of the Secretary General on the Work of the Organization, June 16, 1959–June 15, 1960, U.N. General Assembly, 15th Sess., Official Records, Supp. No. 1 A at p. 3 (Doc. A/4390/Add. 1) (1960).

53 See Report of the Interim Committee, U.N. General Assembly, 3rd Sess., Official Records, Supp. No. 10, at pp. 22–36 (Doc. A/605) (Aug. 13, 1948); Res. 268 ( III), ibid., Resolutions, Pt. II, pp. 10–16 (Doc. A/900) (1949); Ibid., 4th Sess., Supp. No. 11 (Doc. A/966) (1949); ibid., 5th Sess., Supp. No. 14 (Doc. A/1388) (1950). See also Hyde, “The Development of Procedures for the Peaceful Adjustment of Disputes,” and Schwebel, “Secretary-General and Secretariat,” in Commission to Study the Organization of Peace, Ninth Report and Papers Presented to the Commission, at pp. 153 and 198 respectively (1955). Cf. Twelfth Report of the same Commission, Peaceful Co-existence —a New Challenge to the United Nations, at pp. 33–34 (1960).

54 Address by the Honorable Harlan Cleveland, Assistant Secretary of State for International Organization Affairs, 1961 Proceedings, American Society of International Law 206; Dept. of State Press Release No. 273 (Bev.), pp. 2–3 (April 29, 1961); 44 Dept. of State Bulletin 808 (1961).

55 For the most recent study and survey of previous Assembly efforts in this field, see Bailey, The General Assembly of the United Nations, a Study of Procedure and Practice (1960). See also Stein, Some Implications of Expanding United Nations Membership (Memorandum for the Carnegie Endowment for International Peace, 1956).

56 U.N. Doe. A/AC.18/SB.33 at p. 2 (June 26, 1961).

57 Johnson, , “Helping to Build New States,” in Wilcox, and Haviland, (eds.), United States and the United Nations 3, at 12 (1961)Google Scholar.

58 Schachter, 1961 Proceedings, American Society of International Law at 86.

59 U.N. Doc. A/4794 at p. 6 (June 30, 1961).

60 U.N. Doc. S/4882 (July 22, 1961).

61 U.N. General Assembly, 12th Sess., Official Records, 690th Meeting, p. 175 (1957). On the same occasion Mr. Kuznetsov, the representative of the U.S.S.E., had the following to say:

“Allow me, Mr. Hammarskjold, to extend to you the congratulations of the Soviet delegation on your election to the post of Secretary-General of the United Nations.

“It is hardly necessary to mention the important role that can and should be played by the Secretary-General of an organization which now has a membership of eighty-two States and which is called upon to direct the efforts of all its Members towards fulfilling its basic task—the maintenance and strengthening of world peace.

“We fully appreciate Mr. Hammarskjold’s efforts in a number of matters related to the activities of our Organization. We must nevertheless note, in this connexion—and here I think that the Secretary-General will agree with me—that many problems of vital importance to the preservation and strengthening of peace remain to be settled. I should like to express the hope that, during Mr. Hammarskjold’s second five-year term as Secretary-General, the United Nations will achieve far greater success in solving the problems with which it is confronted.” Ibid.