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serving on the staff of the Secretariat could not, in any sense of the word, be considered as agents of their governments. It was also deemed important to provide that member states accept an obligation to refrain from seeking to influence the Secretary-General or any member of the staff of the Secretariat. These provisions were considered essential to assure that the Secretary-General and the staff would constitute a truly international civil service. They are embodied in Article 100 of the Charter which merits quotation in full:
“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".
A further amendment proposed by Canada and New Zealand, empowering the Secretary-General to appoint the staff under regulations established by the General Assembly and giving expression to the standards which should be observed in the appointment of such a staff, was considered favorably by the Conference. Accordingly, Article 101 of the Charter declares that the staff shall be appointed by the Secretary-General under regulations established by the General Assembly. It is stated that 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". Persons are not required to be selected on the basis of representing all of the Members of the United Nations, but due regard is to be paid “to the importance of recruiting the staff on as wide a geographical basisas possible”.
The provisions for the appropriate privileges and immunities of the Secretariat are discussed in the next chapter.
The proposed Secretariat of the United Nations will be, in effect, an international civil service. It will be recruited on the basis of competence, promoted on the basis of merit, and selected with due reference to linguistic and geographical considerations. Unlike a national civil service, however, it will not have the policy-making authorities (the General Assembly and all of the Councils) constantly available for reference and guidance. The staff must therefore be able to give effect to the decisions of policy-making bodies by exercising a high degree of good judgment and responsibility. In this concept the Secretariat becomes rightly one of the principal organs of the United Nations.
REGISTRATION OF TREATIES
One of the contributions which the United States made to democratic control of international relations at the end of the war of 19141918 was the objection to the conclusion of secret treaties. President Wilson made this the first of his Fourteen Points. A provision wa. inserted in Article 18 of the Covenant of the League of Nations requiring all members to register their treaties. In the course of twenty years over 4500 treaties were registered with and published by the League Secretariat.
In 1934 the United States voluntarily agreed to register its treaties in the same way because the Treaty Series published by the Secretariat was found to be a most convenient source in which to find the texts of international agreements, and because the United States was interested in promoting the publication of treaties. It is useful to the Department of State, as well as to other foreign offices, to be able to keep track of the treaty relations of other countries. In 1928 a provision for registration of inter-American treaties was agreed upon at the Habana Conference but no regular system of Pan American registration and publication comparable to that carried on at Geneva has yet developed. The International Civil Aviation Conference at Chicago in 1944 adopted provisions for the registration of agreements on aviation.
Although the subject is one of the details not covered at Dumbarton Oaks, it was natural to include in the Charter (Article 102), a provision for the registration and publication of treaties. Certain definite problems had to be faced. The first was whether the obligation should apply to treaties which had been concluded before the Charter took effect or whether it should apply only to agreements made subsequent to the time when the Charter comes into force. The latter alternative was chosen, in large part because earlier treaties have already been published in the League of Nations Treaty Series and duplication would be wasteful. It will, of course, be open to any state to register with the Secretary-General of the United Nations any earlier treaties which have not already been registered and published elsewhere.
The second issue involved was the scope of the obligations; should the obligation to register cover every international agreement or only certain ones? Experience had indicated that the registration of every international agreement is unnecessary because many of them are of minor importance and of temporary effect. Such, for example, are numerous agreements between governments for the purchase and sale of commodities and the regulation of financial transactions. A more serious problem was the question whether military agreements concluded with the Security Council for the purpose of carrying out its duties under Chapter VII of the Charter should be registered. There was a realization of the fact that detailed arrangements about the disposition of forces at a time when security measures were actually being taken could not be made public. Accordingly, although the obligation to register is stated in general terms, it was contemplated that regulations would be worked out in practice by the General Assembly concerning the registration or non-registration of particular types of agreements.
The third issue had to do with the penalty which should attach to a failure to register. The Covenant of the League of Nations had declared an unregistered treaty would not be binding. The exact effect of this provision was never made quite clear in practice and the Conference thought that a more definite provision would be ad
vantageous. It accordingly adopted a provision which declares that no state may invoke an unregistered treaty before any of the organs of the Organization. This would mean that if a question arose in which a state wanted to take advantage of the treaty either in a case before the International Court of Justice or in some question which was being considered by the Security Council or by the General Assembly, the state would not be able to rely on the treaty unless it had complied with the obligation to register.
A final question involved the position of states not Members of the United Nations. So far as concerns treaties between a Member and a non-member, the Member has the obligation to register. It is to be assumed that the practice followed in connection with the League of Nations would be continued and that non-member states would have the privilege of registering, just as the United States registered its treaties with the League. The Charter could not impose this as an obligation on non-members but the Charter can and does indicate that if a non-member wishes to appear before any organ of the Organization, such as the International Court, and there to invoke a treaty, it must accept as a condition the rule about the registration of treaties.
So far as the United States is concerned, compliance with the obligations of this article involves no change in our established practice. It merely continues that practice. The provisions of the Charter have no relation to such treaties as are now in force. Future treaties, if not registered would be binding as between the parties but could not be invoked before an organ of the United Nations. The representatives of the United States in the General Assembly will participate in the development of such detailed regulations as experience may indicate to be desirable.
INCONSISTENT OBLIGATIONS The United States and the other United Nations regard the Charter as something more than just another treaty." The discussion of the earlier articles of the Charter has shown its special nature. The obligations of the Charter ought, therefore, to enjoy a preferred position if they should conflict with other international obligations. At the same time, as the discussions of Chapter VIII on Regional Arrangements has made clear, it has been important to establish the proper relationship between the Charter and other agreements, such as the Act of Chapultepec, which are not inconsistent.
The subject of inconsistent obligations was not dealt with at Dumbarton Oaks. Since Article 20 of the Covenant of the League of Nations had covered the subject in considerable detail it seemed that its omission from the Charter might cause misunderstanding. A simple statement of the fact that the obligations of the Charter prevail over other international obligations in case of conflict has therefore been included in Article 103.
There is an obvious legal principle that a later agreement supersedes an earlier inconsistent agreement between the same parties. It is, therefore, unnecessary for the Charter to declare that it abrogates inconsistent treaties among Members. Article 20 of the Covenant of the League of Nations did indeed contain such a clause, but the inclusion of such a declaration might involve the task of examining all existing treaties for the purpose of finding out which one con
tained inconsistent obligations. This examination in turn would make it necessary to give some body the power to review treaties and to make a decision in case of doubt. There might be clear cases where the parties or the International Court of Justice could decide, but in other cases complex political questions and speculations about future events might be involved. It might well be true that an inconsistency would not be apparent until a case arose for the application of security measures by the Security Council against a state which had violated its obligations under the Charter. If such a case should arise, Article 103 provides the simple rule that the Charter prevails. Accordingly, no legal technicalities of this character will hinder a Member from loyally complying with its obligations under Articles 2, 48 and 49 of the Charter.
The situation is less simple when a Member of the United Nations has outstanding treaties with a state which is not a Member. The Charter cannot, to be sure, impose obligations upon a non-member, but the operation of the Charter must not be defeated by the invocation of treaties between Members and non-members. It would have been possible to put in the Charter a paragraph like that in Article 20 of the Covenant of the League of Nations which required Members of the League to negotiate their release from inconsistent treaties with nonmembers. Again the wise course seemed to be to rely on the statement of a simple principle in the Charter and upon the loyal cooperation of the Members. If a non-member state should resort to aggression and become the object of security measures, a Member should not be able to plead inability to discriminate against a non-member because some commercial treaty, for example, called for freedom of trade between the two states. Under Article 50, the member state could properly consult the Security Council. According to Paragraph 6 of Article 2, the United Nations might then take appropriate action.
The inclusion of Article 103 in the Charter thus does not mean that the United States is bound to review all of its treaties and to seek to cancel some of them. If events'indicate that any obligations in treaties to which the United States is a party are inconsistent with the Charter, the situation will be cared for when it arises in the manner which has been indicated. In so far as our other international obligations are concerned the Charter contains a provision which will enable the United States and other Members to accept the Charter as the fundamental rule of conduct in the fields to which it applies.
LEGAL CAPACITY It is apparent that an organization like the United Nations which will have offices and employees, will purchase supplies, and presumably rent or purchase office space, must have the legal capacity to enter into contracts, to take title to real and personal property and to appear in court (although its position as a defendant is protected by Article 105). The purpose of Article 104 is to make clear that the Organization has that legal capacity. No such provision was included in the Covenant but the capacity was recognized in practice as in the relations between the League of Nations and the Swiss Government. A provision similar to that stated in this article was included in the agreements relative to the following United Nations organizations: Food and Agriculture Organization; UNRRA; International Monetary Fund; International Bank for Reconstruction and Development; Provisional International Civil Aviation Organization. The need for such a provision was discussed and rediscussed at the conferences dealing with those organizations and it has been the conclusion that for some states at least it is helpful to have such a provision included in the Charter to remove any doubt. It is the national law of each country which determines whether a particular body or organization which is not set up as a corporation under the law of that country will have legal capacity. National laws vary greatly on this matter; in some instances Article 104 may be unnecessary,
in some cases it may need to be supplemented by legislation, and in others it may operate of its own force to confer the necessary status. The simple text adopted, using the same criterion as that applied in the case of privileges and immunities under Article 105, should be ample to take care of the actual needs of the Organization.
This Article does not deal with what is called the “international personality of the Organization. The Committee which discussed this matter was anxious to avoid any implication that the United Nations will be in any sense a “super-state". So far as the power to enter into agreements with states is concerned, the answer is given by Article 43 which provides that the Security Council is to be a party to the agreements concerning the availability of armed forces. International practice, while limited, supports the idea of such a body being a party to agreements. No other issue of “international personality requires mention in the Charter. Practice will bring about the evolution of appropriate rules so far as necessary.
PRIVILEGES AND IMMUNITIES
The United States, in common with all other states of the world, has traditionally granted to the diplomatic representatives of other states certain privileges and immunities. These privileges and immunities have been found over the course of several hundred years to be necessary in order to enable diplomatic representatives to carry out their missions as representatives of states. The laws of the United States have provided for such appropriate treatment for foreign diplomatic officials ever since 1790. It has also been usual to give a special status to an official representing his government at an international conference and in those cases the official has customarily received appropriate consideration from the government of the state in which the conference is held. In recent years, with the trend in international relations to entrust various international tasks to intergovernmental organizations, the need has been felt for according certain privileges and immunities to the officials and representatives of such organizations when engaged on their official duties.
The exact nature of the privileges and immunities to which international organizations and their officials are entitled is not yet sufficiently clear due to the fact that the practice is relatively new and has necessarily varied from one organization to another dependent upon their respective functions. Therefore, Article 105 stipulates that the