188. Memorandum From the Assistant Attorney General (Katzenbach) to the President’s Special Assistant for National Security Affairs (Bundy)1
RE
- Appointment of successor to Secretary-General Hammarskjold
While it is difficult to judge from newspaper accounts the exact status of negotiations to appoint a successor to Secretary-General Hammarskjold, it seems to me that we may be approaching the moment when it is desirable to put some pressure on the Russians through the threat of action by the General Assembly. Herewith is one procedure in that connection, which may avoid some of the difficulties of too abrupt or final action. It has the advantages of putting pressure on the Soviet Union for a reasonable settlement without forcing the more timid neutrals to take a position in direct contravention to that of the Soviet Union.
[Page 403]Under Article 101(1) of the Charter the Assembly can make regulations with respect to the staff to be appointed by the Secretary-General. Pursuant to this Article, regulations approved in 1946 (which I believe are still in effect) provide that “there shall always be one Assistant Secretary-General designated by the Secretary-General to deputize for him when he is absent or unable to perform his duties… .” I understand that Mr. Hammarskjold made no such designation prior to his last trip to Africa. If this is correct, I believe that the General Assembly could designate one of the existing Under Secretaries to deputize for the deceased Secretary-General. There should be little doubt that it has the authority to make a quasi-ministerial designation in lieu of the Secretary-General’s doing so. In fact, in view of the 1946 precedent where the General Assembly authorized the Executive Secretary of the Preparatory Commission to carry out the duties of Secretary-General pending appointment of the Secretary-General, and the later action of the General Assembly extending Trygve Lie’s term for three years upon the failure of the Security Council to agree on a successor, I have little doubt that it could designate a person who is now Under Secretary to act in this capacity. I am aware that there is disagreement among some members of the UN that the authority goes so far, although I understand this to be the United States position with respect to the powers of the General Assembly.
My suggestion is that, rather than requesting the General Assembly to deputize an existing member of the Secretariat or appoint a person to perform the duties of the Secretary-General, we now request the General Assembly merely to amend the existing regulation expressly to provide that upon the death of the Secretary-General, coupled with his failure to have deputized an Under Secretary, the General Assembly will act in his stead either by so deputizing or by naming a person to exercise the powers of the Secretary-General.
The introduction of a resolution framed in this way should strengthen the bargaining position of the United States in the current negotiations and would have the advantage of gaining support from all those who favor the power of the General Assembly generally but who might be opposed to any specific nominee or specific proposal or who hesitates to cross the Soviet Union directly.
If some countries question the legal authority of the General Assembly to take even this action, I should think this is one matter on which we could willingly accept the views of the International Court of Justice in an Advisory Opinion. The only difficulty I foresee here is one of delay. But even assuming some delay, the proposal would have the merit of positive action with the possibility of definitive resolution of a recurring problem. I have little doubt as to the conclusion which the court, as presently composed, would come to, but this judgment, of course, should be checked with those more familiar with the court than I.
[Page 404]In connection with the foregoing, I might add that press accounts of the current negotiations have generally not emphasized sufficiently the extent to which the position of the United States is consistent with the present provisions of the Charter, and the position of the Soviet Union is inconsistent with Articles 100 and 101 which proscribe the independence of the Secretariat from political guidance by countries. As you undoubtedly know, proposals similar to those now being put forward by Soviet Russia were put forward by Russia and by other countries at the time the Charter was being discussed in San Francisco and were rejected. Those familiar with the UN are undoubtedly aware of this, but it seems to me that some publicity to this effect might be desirable.