Chapter VI. Selected legal opinions of the secretariats of the United Nations and related intergovernmental organizations

SELECTED LEGAL OPINIONS OF THE SECRETARIATS OF THE UNITED NATIONS AND RELATED INTER-GOVERNMENTAL ORGANIZATIONS

. A. Legal opinions of the Secretariat of the United Nations

(issued 'or prepared by the Office of Legal Affairs)

  1. REQUEST BY A MEMBER STATE THAT THE SECRETARY-GENERAL

    TAKE IMMEDIATE STEPS TO ENSURE FREE ACCESS OF THE GENERAL PUBLIC TO ALL THE MATERIAL STORED IN THE ARCHIVES OF THE UNITED NATIONS WAR CRIMES COMMISSION—RULES GOVERNING ACCESS TO THE ARCHIVES OF THE COMMISSION

    Letter from the Secretary-General addressed to the Permanent Representative of a Member State to the United Nations1

    I have received your letter of 12 May 1986 in response to my letter of 9

    May, concerning your request that I take "the immediate steps necessary to ensure free access of the general public to all the material stored in the archives of the United Nations War Crimes Commission" (UNWCC). In my letter I had indicated that your request called for a fundamental revision in the rules regarding access to the archives in question, of which the United Nations Secretariat was in the position of a custodian and trustee, and that, consequently, I was initiating consultations with former members of UNWCC on this subject.

    As you are aware, at the time when the question of the ultimate disposal and custody of the archives of UNWCC was being considered, the Secretary-General of the United Nations, Mr. Trygve Lie, in the light of previous exchanges of correspondence and consultations between officials of the Commission and of the United Nations Secretariat, indicated, in a letter of 15 December 1947 to the Secretary-General of the Commission, that the United Nations was "prepared to assume custody of the archives of the Commission at the time of its closing". He further suggested "that this question might be discussed between competent officials of the two Organizations with a view to determining conditions of transfer, including provisions for ensuring the necessary restriction on any material of a confidential or secret nature". When UNWCC accepted this offer, in a reply dated 28 January 1948, it also expressly agreed to Mr. Lie's suggestions regarding discussions on the conditions of transfer and for ensuring restrictions on any material of a confidential or secret nature. On the basis of the agreement thus reached between the two Organizations, the United Nations, in establishing the rules governing access to the UNWCC archives, consulted with the late Dr. J. J. Litawski, Legal Officer of the Commission, and with the former

    Chairman, the late Lord Wright, who indicated general agreement with those rules.

    The rules promulgated against the above background permit full access to the bulk of the records of the Commission to persons engaged in bona fide research in the history of the Commission or in related problems in international law or associated fields. However, certain records are subject to restrictions, namely:

    (

    1. Those parts of the minutes and documents of the Commission and its Committees and of the Research Office "Documents" that refer to specified individuals charged or suspected of war crimes;

    (b) The lists of war criminals, suspects and witnesses; related indexes; and the formal charges and related papers.

    These restricted records may be inspected and used only for official United Nations purposes.

    Official United Nations purposes have been understood to include prosecution of war crimes and access has thus been granted to Governments to this end upon written request and upon the understanding that the records are strictly confidential and will be handled on the same basis of confidentiality as any other material being used in a criminal investigation. This derives from the fact that the material in the restricted records has not been submitted to judicial process or otherwise subjected to legal review and, in the great majority of cases, the individuals involved have not been informed of the charges or other data relating to them and thus have had no opportunity to reply. The rules further note that:

    "It is understood that the United Nations has not succeeded to the functions of the United Nations War Crimes Commission, and the Secretariat, therefore, cannot be called upon to reply to inquiries regarding persons charged or suspected of war crimes."

    The rules have been in force since the UNWCC archives were transferred to the United Nations Secretariat in 1948, and, so far as limitations on access to certain records are concerned, they have been interpreted in practice in a manner that has so far proved satisfactory to every Government that has sought access in specific cases. The particular case to which you refer, and in respect of which you quote from a memorandum of Mr. Stavropoulos, relates not to the rules themselves but to the accompanying understanding that the Secretariat cannot be called upon to reply to inquiries from private sources regarding persons charged or suspected of war crimes. In this case, the Secretariat responded affirmatively to a request from (wo brothers who wished to establish that their names were not included in the UNWCC lists of war criminals as they claimed that their personal and business reputations had been badly damaged by allegations that they were so listed. The response that they were not so listed did not therefore involve disclosure by the Secretariat of any of the restricted material entrusted to it by UNWCC.

    With reference to your letter under reply, I am not aware of any issue at the present time regarding the right of the Secretariat to promulgate the rules governing access to the archives of UNWCC. This is not disputed. However, in interpreting the responsibilities of the Secretariat as custodian and trustee of the records of a body that antedated the United Nations and was entirely independent of it, I have concluded that the proper discharge of these responsibilities, when

    important and fundamental changes are proposed in the rules governing access, requires consultations with the Governments that had entrusted those records to the United Nations for their views before any decision is taken.

    As you have requested that your letter of 12 May 1986 be circulated as a document of the General Assembly, under items 12 and 135 of the preliminary list, and of the Economic and Social Council, under item 9 of the agenda of its first regular session in 1986, I am giving the same circulation to this reply.

    16 May 1986

  2. POLICY GOVERNING ACCESS TO UNITED NATIONS DOCUMENTS AND

    FILES

    Letter to a foundation

    I have been requested by the Secretary-General to reply to your letter to him of 12 June 1986 concerning your current project dealing with the relationship between several non-governmental organizations (NGOs) and the United Nations.

    I have sought to clarify the matter and it appears that the information you received, to the effect that the Office of Legal Affairs had advised that the NGO files were not open and could therefore not be shown to you, was based on advice relating to the status and nature of restricted official documents given by the Office when it was consulted in a different context in the late 1970s.

    I would therefore like to inform you that access to United Nations documents and files are governed by the following considerations:

    (i) Internal office files containing inter-office memoranda and correspondence are not open either to Governments or to members of the public;

    (ii) Official documents and records published with a United Nations document symbol and given general circulation are readily available for review by Governments and interested individuals;

    (iii) Certain official documents are given only limited circulation and are intended for use only by a particular United Nations organ. In these cases, circulation of the documents is limited to the membership of the organ concerned. However, documents with a restricted circulation become accessible to interested Governments and individuals in the United Nations Library when they are discussed in open meetings, which is normally the case. Occasionally, however, certain documents with a restricted circulation are considered in closed session, and then they are available only to the participants in the meeting in question. In such cases, access to the restricted documents is gov-erned by the United Nations body for whose consideration they were prepared.

    Turning specifically to the records of the Committee on Non-governmental Organizations, one must distinguish between official documents and records originating from the Secretariat, material submitted by organizations to the Secretariat and reproduced in documents, and internal office files containing

    information not intended for use outside the Secretariat. In accordance with the foregoing, there would be no obstacle to granting access to Governments and interested individuals to materials contained in official documents, even if their circulation is restricted, provided that they are considered in open meetings. Secretariat files on NGOs containing inter-office memoranda and correspondence are not open to inspection by Governments or the public. However, materials contained in such files and submitted by NGOs such as reports on their activities and other materials providing information to the United Nations concerning their organization's status, membership, financing, etc., and intended for public use may be made accessible to Governments and interested individuals.

    16 May 1986

  3. PRESENTATION OF CREDENTIALS BY NEWLY APPOINTED PERMANENT

    REPRESENTATIVES TO THE UNITED NATIONS DURING A TEMPORARY ABSENCE OF THE SECRETARY-GENERAL—POWER OF THE SECRETAR Y-GENERAL TO DELEGATE COMPETENCE IN THIS REGARD TO ANOTHER OFFICIAL OF THE UNITED NATIONS

    Memorandum to the Chef de Cabinet, Executive Office of the Secretary-General

  4. You have requested the views of the Office of Legal Affairs regarding the presentation of credentials by newly appointed permanent...

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