Chapter 3:   THE PEOPLE

Section 10:   Secretary-General and the Secretariat

 

How many times have Secretaries-General acted under Article 99 of the Charter?

 

During the 2016 appointment process, many expressed hope that the next incumbent would be a proactive Secretary-General (see, for example, “Dear Mr. Guterres, Please Be a Hammarskjoldian Secretary-General” on PassBlue).  In this context, the incoming Secretary-General has been encouraged by some to make greater use of Article 99 of the UN Charter, which reads:  “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.”

 

The calculations as to how many times previous Secretaries-General have exercised their Article 99 power span a wide range, from two cases to more than a hundred.  Such diversity is explained by the fact that recourse to Article 99 can be defined very narrowly or far more broadly.  When a Secretary-General has explicitly invoked Article 99, there has been no problem in identifying recourse to that Article, but such specificity has been rare.  Rather, many more cases exist where a Secretary-General has, upon his own initiative, raised an issue with the Security Council without directly citing Article 99.  In these latter cases, there are a number of variables which may suggest that Article 99 has been in play.  These include:

 

• Did the Secretary-General use the language of Article 99, even if not explicitly invoking that Article?

• Did the Secretary-General later characterize his initiative as recourse to Article 99?

• Was the situation at issue not listed in the Summary Statement of matters of which the Security Council is seized, and therefore was being raised with the Council for the first time?

• Did the Secretary-General request that the Council meet, or only that it consider the situation?

• Did any Member State, or other entity entitled to request a Security Council meeting under the Provisional Rules of Procedure, make such a request at the same time as the Secretary-General?  (Under Rule 2, the Council President shall call a meeting at the request of any Council member; under Rule 3, the President shall do the same at the request not only of the Secretary-General, but also at the request of any other Member State, acting under Article 35 of the Charter, or the General Assembly, acting under Article 11 of the Charter.)

• Did the Secretary-General communicate to the Council in writing or orally?

   

Keeping in mind these variables, what follows is a generous list of noteworthy cases which have elements relating to Article 99, but not all of which constitute clear recourse to it:

 

Trygve Lie (1946-1952):

The situation on the Korean peninsula (1950) – On page 161, our book recalled that on 25 June 1950, when the Security Council met after war broke out on the Korean peninsula, the agenda cited a communication from the United States requesting “an immediate meeting of the Security Council”, and a cablegram from the UN Commission on Korea.  Addressing the meeting, Secretary-General Lie asserted that

 

“The present situation is a serious one and is a threat to international peace.  The Security Council is, in my opinion, the competent organ to deal with it.  I consider it the clear duty ofthe Security Council to take steps necessary to re-establish peace in that area.”

 

Lie also stated that after he was informed that a conflict appeared to have broken out in Korea,

 

“I immediately dispatched telegrams to the United Nations Commission on Korea asking for a report. This morning the reply of the Commission was received and it has been circulated to members of the Security Council as document S/1496.” (S/PV.473)

 

Although in his remarks to the Council Lie made no clear reference to Article 99, at a meeting of the General Assembly on 28 September 1950, Lie stated, “I refer . . . to my statement to the Security Council on 25 June last, concerning the Korean conflict, when for the first time I invoked Article 99 of the Charter” (A/PV.289 (V)).  It would seem therefore that Lie considered that his act of requesting and transmitting to the Council the report of the UN Commission on Korea constituted an exercise of his power under Article 99.  While Lie’s interpretation of his initiative may seem overstated, it should be recalled that this case occurred when the United Nations had only been in existence for four years, and no standards had yet developed as to the practice of invoking Article 99.

 

Dag Hammarskjöld (1953-1961):

The Congo crisis (1960) – On 13 July 1960, Hammarskjöld sent a letter to the Council President stating,

 

“I wish to inform you that I have to bring to the attention of the Security Council a matter which, in my opinion, may threaten the maintenance of international peace and security.  Thus, I request you to call an urgent meeting of the Security Council to hear a report of the Secretary-General on a demand for United Nations action in relation to the Republic of the Congo.  May I suggest that the meeting is called for tonight at 8.30 p.m.” (S/4381)

 

While this letter did not explicitly cite Article 99, it echoed the wording of that Article, in that Hammarskjöld stated that in his opinion, the situation in the Congo “may threaten the maintenance of international peace and security”.  When the Council convened later that same day, the agenda made reference to the Secretary-General’s letter as a sub-item.  During the meeting, the Council President stated that “This meeting has been called at the request of the Secretary-General”.  Upon taking the floor, Hammarskjöld stated that “The reason for my request, under Article 99 of the Charter, for an immediate meeting of the Security Council is the situation which has arisen in the newly independent Republic of the Congo.”  In response to remarks by the Soviet representative, Hammarskjöld made clear that he had requested that the Council meet on his own initiative, rather than at the behest of the Congolese government  (S/PV.873).

 

The situation in Tunisia (1961) – On 21 and 22 July 1961, at the request of Tunisia, the Council convened two meetings to discuss a complaint by that Government that France had attacked its city of Bizerte.  At the outset of the second meeting, Hammarskjöld stated that

 

“News reaching us from Tunisia indicates that the serious and threatening development which the Council took up for consideration yesterday continues, with risks of irreparable damage to international peace and security.  In view of the obligations of the Secretary-General under Article 99 of the Charter, I consider it my duty in the circumstances to make an urgent appeal to this Council.  Whatever the problems which may arise in an effort to get a complete and definitive resolution, there is need for immediate action which cannot wait for the more time-consuming consideration necessary in order to reach an agreed conclusion to this debate” (S/PV.962).

 

Since the Council had already met the previous day at the request of the Tunisian Government, it would seem that Hammarskjöld was invoking Article 99 in order to bring to the Council’s attention not so much the need to meet on this matter, as the need to act on it.

 

U Thant (1961-1971):

The situation in East Pakistan vis-à-vis the adjoining Indian states (1971) – On 20 July 1971, in a memorandum to the Council President, Thant described the worsening situation along the borders of East Pakistan and elsewhere in the sub-continent, and concluded by saying, “It is for these reasons that I am taking the unusual step of reporting to the President of the Security Council on a question which has not been inscribed on the Council's agenda.”  This memorandum was reprinted in Thant’s report of 3 December 1971 (S/10410), in which he stated that

 

“In view of his conviction that this situation constitutes a threat to the maintenance of international peace and security, the Secretary-General feels that he should report to the Security Council on the efforts he has made so far in regard to this problem.  The Secretary-General has kept the President of the Security Council informed of these efforts under the broad terms of Article 99 of the United Nations Charter, which provides that ‘The Secretary-General may bring to the attention of the Security Councilany matter which in his opinion may threaten the maintenance of international peace and security’.”

 

Kurt Waldheim (1972-1981):

The situation in Cyprus (1974) – On 16 July 1974, Waldheim wrote to the Council President stating that “In view of the seriousness of this matter in relation to international peace and security and in view of the United Nations involvement in Cyprus, I request you to convene the Security Council in order that I may report to the Council on the information which I have received through my Special Representative in Cyprus and the Commander of the United Nations Peacekeeping Force in Cyprus” (S/11334).  When the Council convened later that same day, its President stated, “This meeting of the Council has been convened pursuant to the request contained in the letter dated 16 July 1974 from the Secretary-General to the President of the Council [S/11334], and in the letter dated 16 July 1974 from the representative of Cyprus to the President of the Council [S/11335].”  In addressing the Council, Waldheim first reported on the attempted coup in Cyprus and its aftermath, and then added that

 

“in the context of the Cyprus problem such events carry a serious risk of a threat to international peace and security in a much wider framework.  For all these reasons, and in view of the Security Council’s responsibilities in the Cyprus problem, I have felt it my duty to make this report to the Council today.”  (S/PV.1779)

 

The case for considering this initiative by Waldheim to be recourse to Article 99 is somewhat tenuous, given that the situation in Cyprus was already on the Council’s Summary Statement, that the Cypriot government also requested that the Council meet, and that Waldheim’s letter and statement only vaguely mirrored the language of Article 99.

 

The situation in Lebanon (1976) – In an unpublished letter to the Council President dated 29 March 1976, Waldheim noted his authority under Article 99 of the Charter and then put forward his view that unless there was a ceasefire, the civil war in Lebanon risked becoming a threat to international peace and security.  The Council did not decide to convene a meeting on the matter at that time (see related article on this website).

 

The situation in Iran (1979) – On 25 November 1979, Waldheim wrote to the Council President that in his opinion, the crisis in Iran, where United States diplomats were being held hostage, “poses a serious threat to international peace and security”.  He added, “Accordingly, in the exercise of my responsibility under the Charter of the United Nations, I ask that the Security Council be convened urgently in an effort to seek a peaceful solution in conformity with the principles of justice and international law” (S/13646).  When the Council convened two days later, on 27 November, it did so with the Secretary-General’s letter as a sub-item.  In addition, the Council President stated that “I wish to refer to the letter of the Secretary-General dated 25 November [S/13646], on the basis of which the Council is meeting.”  When Waldheim took the floor, he expressed his appreciation to the President and the Council members “for having convened this highest organ of the United Nations for international peace and security in response to my letter of 25 November.”  After referring to both the seizure of the United States embassy in Tehran and the redress sought by the Government of Iran for actions committed by the previous Iranian regime, Waldheim stated

 

“It was in the light of these developments and of the escalation of tension that I concluded that the present crisis poses a serious threat to international peace and security.  Accordingly, in the exercise of my responsibility under the Charter, I asked for the urgent convening of the Security Council.”  (S/PV.2172)

 

The situation between Iran and Iraq (1980) – On 23 September 1980, Waldheim wrote a letter to the Council stating

 

“I am deeply concerned at the escalation of the conflict between Iran and Iraq which constitutes, in my opinion, a potentially grave threat to international peace and security. . . .  In view of the dangers which will inevitably arise from a further escalation of this conflict I feel that it is urgently necessary, as a first step, for the members of the Security Council to meet in consultation.  I would be grateful therefore if you could arrange for such consultations at the earliest possible time.” (S/14196)

 

Two days later, on 25 September, Waldheim again wrote to the Council President.  After expressing his appreciation that the Council had “immediately responded” to his prior request, he detailed his further efforts to encourage the two parties to settle their differences by negotiation.  He then stated that

 

“Unfortunately, despite all of these efforts the fighting has continued and intensified . . . .  As I stated in my appeal of 22 September, the current situation is an undoubted threat to international peace and security.  I therefore feel obliged, in the exercise of my responsibilities as Secretary-General of the United Nations, to suggest that the Security Council should consider this matter with the utmost urgency.” (S/14127)

 

The Council convened on 26 September, pursuant to the requests of Council members Mexico and Norway (S/PV.2247).

 

Javier Pérez de Cuéllar (1982-1991):

The situation between Iran and Iraq (1987) – In his Annual Report to the 42nd session of the General Assembly (A/42/1(SUPP)), Pérez de Cuéllar wrote that in January 1987,

 

“I called for the Security Council to consult, possibly at the level of foreign ministers, on action to halt the war . . .  The Council acted decisively, adopting unanimously a resolution ordering immediate implementation of the cease-fire called for earlier and defining steps to be taken by the two countries in order to establish a basis for peace.”

 

Pérez de Cuéllar did not make explicit reference to Article 99, nor echo its language, in describing his initiative.

 

The situation in Lebanon (1989) – On 15 August 1989, Pérez de Cuéllar wrote to the Council President concerning the worsening situation in Lebanon.  Stating that in his opinion “the present crisis poses a serious threat to international peace and security”, he declared, “Accordingly, in the exercise of my responsibility under the Charter of the United Nations, I ask that the Security Council be convened urgently in order to contribute to a peaceful solution of the problem” (S/20789).  When the Council convened later that same day, the Council President stated that the Council was meeting “immediately” in response “to the urgent appeal addressed to the Security Council by the Secretary-General in his letter of 15 August 1989” (S/PV.2875).  In a report issued later that year, Pérez de Cuéllar wrote:

 

“Last August, when the fighting in and around Beirut had escalated to an unprecedented level, I felt compelled, for the first time in my tenure as Secretary-General, to invoke Article 99 of the Charter.” (S/20789)

 

Boutros Boutros-Ghali, Kofi Annan, and Ban Ki-moon never formally invoked Article 99.  Rather, our book observes that

 

“as part of the expanding interactions, both formal and informal, between the Secretary-General and the Council members, it became somewhat commonplace for these Secretaries-General to draw the attention of the Council to situations already on its agenda which were deteriorating, and to request that the Council consider taking appropriate action.  These alerts could be given to the Council through written reports of the Secretary-General, during his briefings in both formal meetings and informal consultations of the whole, by letter, or in informal settings such as the monthly luncheons and retreats.”

 

This more informal approach to Article 99 was commented upon by Kofi Annan’s spokesperson during a noon briefing on 1 April 2002.  Asked by a journalist why Annan had requested to give another briefing to the Council members, this time in consultations, on the worsening situation in the Middle East, the spokesperson responded: 

 

“The situation on the ground is moving very rapidly and dramatically.  It’s some 72 hours since he last

briefed the Council, and he’s assuming that the Council would want to stay seized on a daily basis with the dangerous situation in the Middle East.  So he did, it’s true, call for this meeting, and he’s had telephone calls with world leaders throughout the weekend.  So he has information to impart to the Council to assist them in their deliberations on the matter. . . .  I don’t know the precise way it came about, but this is not the first time that through an exchange between the Secretary-General and the President of the Security Council that they mutually agreed to call a meeting.  As he took the initiative, it would be under Article 99 of the Charter, which authorizes him to bring to the Council’s attention any threat to international peace and security.  But they’re working so closely these days that it’s a phone call and not a formal letter any more to get the machinery going.” (italics added)

 

What follows are some examples of these later Secretaries-General raising matters with the Security Council without invoking Article 99:

 

Boutros Boutros-Ghali (1992-1996):

It was particularly in connection with the various conflicts springing from the dissolution of the former Yugoslavia that proactive initiatives of Boutros-Ghali became so numerous that today they are difficult to count.  In one example, on the evening of 2 April 1993, Boutros-Ghali wrote a letter to the Council President on the basis of information received from the UN High Commissioner for Refugees describing “the disturbing situation which has developed in Srebrenica . . . following the decision of the Bosnian Serb military authorities not to permit any further aid to be delivered to that town”.  The Secretary-General concluded his letter by stating that the Council members “may wish to consider what supportive action they might take in this extremely worrying situation” (S/25519).

 

In another case, by a letter dated 14 July 1993, the Secretary-General informed the Council President that he had “come to the conclusion that developments at the Maslenica bridge and the Zemunik airport deserve the urgent attention of the Council.”  However, Boutros-Ghali stopped short of requesting that the Council meet on the situation, and instead merely stated that “The Council may wish to consider the danger posed by this situation and decide upon appropriate action” (S26082).  When the Council met on 15 July, the Secretary-General’s letter was cited as the only sub-item to the agenda, and the Council adopted a presidential statement expressing deep concern “at the information contained in the letter of the Secretary-General” (S/26084).

 

Kofi Annan (1997-2006):

In his Foreward to the book, Secretary or General? The UN Secretary-General in World Politics (Chesterman, Simon, ed., Cambridge, Cambridge University Press, 2007, p. 72), Annan stated with respect to Article 99, “I myself have never found it necessary to use it.”

 

However, Annan occasionally raised a matter with the Council without formal reference to Article 99.  For example, at a Security Council meeting held on 12 March 2002, Annan reported to the Council that in the Middle East “the toll of the dead and wounded, particularly among innocent civilians . . . has risen to levels that can be described, without exaggeration, as appalling”.  Stating that he was giving the Council “my assessment of the situation on the ground”, Annan called it “the worst in 10 years” and appealed to the Council “to lend its full authority and influence to the vital cause of peace” (S/PV.4488.).  And Annan’s initiative to brief the Council on the Middle East in consultations on 1 April 2002 is referenced above.

 

Ban Ki-moon (2007-2016):

Addressing the Security Council on 21 September 2016, Ban Ki-moon repeated messages he had been giving to the Council members, in various settings:

 

"With my strong backing, Special Envoy Staffan de Mistura will be ready to present to the parties a draft framework of proposals as a starting point for negotiations for a Syrian-owned and Syrian-led political transition. . . .  I have asked the Special Envoy to work intensively toward convening formal negotiations as soon as possible.  I call on the Security Council to fully support the Special Envoy as he proceeds in this manner – with no ifs, ands, or buts. . . .   And I expect all to use their influence with the Syrian parties to make sure they come to talks, ready to genuinely negotiate the core issues of political transition. . . . I reiterate my call on the Security Council to refer the situation in Syria to the International Criminal Court. . . . I challenge everyone to use their influence now to restore a cessation of hostilities, enable humanitarian assistance everywhere it is needed, and support the United Nations in charting a political path for the Syrians to negotiate a way out of the hell in which they are trapped.  You have now no higher responsibility in your service as members of the United Nations Security Council."  (S/PV.7774)

  

António Guterres (2017-present):

See article on this website: "Writing to the Council about Myanmar, Secretary-General Guterres acts under Article 99"

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In addition, the book observes that some have seen the “horizon-scanning” briefings occasionally given by Secretariat officials during consultations or in other private settings as coming under the “early warning” function of the Secretary-General in the context of his Article 99 powers.  The book adds, however, that not all Council members agree that this function should be “institutionalized”, preferring that “early warning” briefings should be given only when a grave situation appears to demand it.  (This update supplements pages 162 to 165 of the book.)