By Otto Spijkers

Article 99 is by far the most important article in the short list of articles in the UN Charter assigning functions to the Secretary-General (articles 97-100). Article 99 explicitly gives the SG important political power. When article 98 still assigns mainly administrative functions to the SG, be it with some political ‘side effects’, article 99 is purely political. SG Dag Hammarskjold (see picture) said that ‘[i]t is article 99 more than any other [article] which was considered by the drafters of the Charter to have transformed the Secretary-General from a purely administrative official to one with an explicit political responsibility’ (Source: p. 335 of Foote, Servant of Peace: A Selection of the Speeches and Statements of Dag Hammarskjold. Harper & Row Publishers, New York, 1962.). Article 99 permits the SG to ‘bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security’. Article 99 allows the Secretary-General to force the Security Council to discuss certain conflicts they might rather have ‘overlooked’. The drafters of the Charter were very much aware of the possible consequences of giving such a political right to the SG. They believed, in 1945, that ‘[i]t is impossible to foresee how this article will be applied; but the responsibility it confers upon the Secretary-General will require the exercise of the highest qualities of political judgement, tact and integrity’ (Report of the Preparatory Commission). Article 99 is not often invoked directly, or, to be more precise: it was invoked only twice in the history of the United Nations, the first time by Dag Hammarskjold in 1960, and the last time by Kurt Waldheim in 1979. However, the implied rights of article 99 are, at least in practice, far more important than the actual right of political initiative. There are two such implied rights. Firstly, the SG’s right to bring peace threatening matters before the Security Council implies a right to investigate. This seems obvious, because how could the SG know what situation might threaten the peace if he were not allowed to investigate these situations? The second implied right of article 99 is the right to talk to the parties of any conflict, without prior authorization from (all members of) the Security Council. The justification for this right is usually that if a SG may investigate any matter he believes might threaten the peace, and if he eventually may bring this matter to the Security Council, then why shouldn’t he be allowed to talk to people and convince them to stop – or not start – threatening the peace? The idea is that the SG is ideally suited to engage in such talks. As Walter Lippman wrote: ‘the greatest, although it is the least advertised of the functions of the Secretary-General is to be a father confessor to the member governments, to be a man in whom they can confide, and who knows, therefore, from continued, private, privileged information, the real position in an international controversy’ (Walter Lippmanin the New York Herald Tribune of November 7, 1961). Then and now, the SG does play the role of ‘father confessor’ quite frequently. SG Dag Hammarskjold was the first to make a legal case defending this extended interpretation of article 99. He said that ‘article 99 not only confers upon the Secretary-General a right to bring matters to the attention of the Security Council but that this right carries with it, by necessary implication, a broad discretion to conduct inquiries and to engage in diplomatic activity in regard to matters which ‘may threaten the maintenance of international peace and security” (p. 334 of Foote). The latter right, the right to negotiate and to engage in diplomatic activity, or the right to be a father confessor as Walter Lippman so eloquently phrased it, is usually called ‘good offices’. The use of ‘good offices’ and the collection of information have become central tasks of the Secretary-General . If these two rights, the right to engage in diplomatic activity and the right to investigate, so often used, both stem from article 99 , it is somewhat surprising that the article has actually been invoked only twice in almost sixty years of UN history. Why is that? To answer this question, it is perhaps clarifying to look at the explanation of the SG after he first used article 99. The first time a SG used his right of initiative explicitly was in 1960, the ‘matter’ was the situation in the Congo (see previous post), and the SG was Dag Hammarskjold (the picture is of Hammarskjold in the Congo; I found it on this site). After receiving a cry for help from the Congo, the SG used his article 99-right to request an emergency meeting of the Security Council the next day. In this emergency meeting the SC adopted a resolution establishing a large peacekeeping mission, exactly according to the wishes of the Secretary-General. The first troops were on their way to the Congo the next day (which is a speed record that will probably never be beaten). So why did Hammarskjold choose to use the article 99 road, instead of just referring the matter to the SC in a more informal way? Hammarskjold explains:

The main significance of the evolution of the office of the Secretary-General [..] lies in the fact that it has provided means for smooth and fast action, which might otherwise not have been open to the Organization. This is of special value in situations in which prior public debate on a proposed course of action might increase the difficulties that such an action would encounter, or in which a vacuum might be feared because Members may prove hesitant, without fuller knowledge of the facts or for other reasons, to give explicit prior support in detail to an action which, however, they approve in general terms or are willing should be tried without formal commitment. (Source: Annual Report to the General Assembly, submitted on August 20, 1959.)

One must remember that there was a Cold War going on in the 1960’s, and that both the United States of America and the Soviet Union were requested by the Congolese Government to intervene. In these circumstances it is understandable that Hammarskjold believed it was important that the SC take action immediately and that it was best that the SC is approached by an organ as impartial as the SG. If the circumstances are less exceptional, as they usually are, especially after the Cold War, it is better to leave peace and security issues to the SC. In fact, one could even argue that it is somewhat insulting to the members of the Security Council to bring a certain conflict to their attention, as if they were reluctant or incompetent to act on their own. It is perhaps better to inform them in a more informal way, and if this does not result into action, then the SG may threaten to invoke article 99. – Otto