NATIONS UNIES LE HAUT COMMISSAIRE UNITED NATIONS ~ POUR LES REFUGIES THE HIGH COMMISSIONER FOR REFUGEES
Case Postale 2500 1211 Genfeve2 Suisse
25 July 2005
Dear Mr. Secretary-General,
With warm personal regards.
Yours sincerely,
Antonio Guterres
Mr. Kofi A. Annan Secretary-General United Nations Headquarters New York INTEROFFICE MEMORANDUM MEMORANDUM INTERIEUR
TO: Mr. Antonio Guterres DATE: 21July2005 High Commissioner for Refugees
PROM: Nicolas Michel Under-Secretary-General for Legal Affairs The Legal Counsel
SUBJECT: Membership in the Clnb of Madrid
1. I refer to your letter dated 11 July 2005 concerning your continued membership in the Club of Madrid (the "Club") In your personal capacity. We understand that you have been a member of the Club for three years. You have requested our advice as to whether, as UN High Commissioner for Refugees, you are permitted to continue your membership in the Club, participate in its General Assembly in September 2005 and accept invitations from the Club which include air travel and accommodation.
2. We note that the legal charter of the Club provides that the purpose of the Club is to "co-operate and foster all kinds of initiatives whose goal is to strengthen and consolidate democracy around the world and especially to enable the transition of non-democratic countries to democracy." With regard to your participation in the General Assembly, the charter provides that the General Assembly is the highest body of representation and governance of the Club and is "composed of former Heads of State and Government who are members of the Club of Madrid, of the Presidents and one other member of each of the constituent Foundations that organized the Conference, as well as the Secretary General, all of whom shall attend and participate in meetings with entitlement to vote,"
Applicable rules
3. The Club is a body external to the UN, and the activities of the Club would not constitute official functions. Therefore, the rules pertaining to "outside activities" of staff are applicable to the present case.
4. Staff Regulation 1.2 contains a separate section governing outside activities of staffof the United Nations, which reads as follows:
"Outside employment and activities
"(o) Staff members shall not engage in any outside occupation or employment, whether remunerated or not, without the approval of the Secretary-General; "(p) The Secretary-General may authorize staff members to engage in an outside occupation or employment, whether remunerated or not, if:
"(i) The outside occupation or employment does not conflict with the staff member's official functions or the status of an international civil servant;
"(ii) The outside occupation or employment is not against the interest of the United Nations; and
"(Hi) The outside occupation or employment is permitted by local law at the duty station or where the occupation or employment occurs."
5. Further elaboration of the above provisions, as well as the procedure for handling requests for authorization to engage in outside activities, are set out in Staff Rule 101.2 and the Administrative Instruction on "Outside Activities" (ST/AI/2000/13 of 25 October 2000). In particular, Section 2 of this Administrative Instruction states as follows:
"Staff members engaging in outside activities authorized under the present instruction shall make clear to the organizers and participants in such activities, including any employers, that, they act in their personal capacity and not as representatives of the United Nations."
Analysis and advice
6. One of the primary reasons for the above-detailed administrative rules is to ensure that outside activities do not conflict with a staff member's official functions, or with his or her status as an international civil servant
7. When asked to provide legal advice concerning requests from UN officials for authorization to engage in outside activities, this Office usually advises that the above-cited rules of the Organization do not preclude granting such authorizations provided that the requirements and conditions set out in those rules are satisfied. At the same time, where appropriate, this Office identifies the various risks and concerns, if any, which should be taken into account in approving an outside activity, as follows:
(a) Many outside organizations inviting high-level UN officials to participate in their organs or activities engage in fund-raising. This Office has consistently advised that neither the Secretary-General nor UN officials should engage in outside fund-raising on UN-related issues, since this would jeopardize the Organization's privileges and immunities. The underlying concern is that should problems arise during the course of such fund-raising activities (for example, the improper solicitation or management of funds, third-party claims or difficulties -with the taxation authorities of the State in which the outside entity is incorporated), the UN would be potentially vulnerable to resultant court proceedings. Accordingly, this Office has advised that it is undesirable for UN officials to become involved with any type of third-party fund-raising organization. where the operational decisions on the seeking and disbursement of funds would be taken by individuals not accountable to the Secretary-General, but using the UN name to attract donors.
(b) Another concern arises in cases where activities of an outside entity overlap or may overlap with those of the United Nations. In such cases., this Office raises the question whether the UN official concerned should be directly involved with a non-United Nations body whose policies or specific actions may not necessarily be, in all cases, consistent with those of the UN. (c) Still another concern arises in cases where activities of, or individuals involved with, an outside body are politically sensitive and/or controversial, and any form of association of a high-ranking UN official with such entity may be fraught with political risks or embarrassment for the UN. 8. The above-mentioned risks and concerns must be assessed in each particular case.1 For example, the inclusion of your name and official title as UN High Commissioner for Refugees in the list of participants hi the General Assembly, the Club's highest governing body, could be erroneously perceived by the public as an endorsement or approval by the UN of that body and its activities. 9. Further, the charter provides that the Club's "capital comprises any assets that may be freely donated by Individuals,, corporations, or institutions, or funds received from the Club's remunerated activities, or subsidies of any kind." It is not clear what constitutes the remunerated activities of the Club. There is a risk that you may be asked to participate in fund-raising for the Club, or that your name and UN position may be used for this purpose, which is an area of concern. 10. With regard to your inquiry regarding accepting invitations from the Club which include air travel and accommodation, Staff Rule 101.2(s) provides that staff members authorized to participate in outside activities may receive accommodation, travel and subsistence allowances generally in line with those payable by the UN,
1 This advice does not examine cases of conflict of interest addressed in Staff Regulation 1.2 (m), entitled "Conflict of Interest," which stipulates as follows: "Staff members shall not be actively associated with the management of, or hold a financial interest in, any profit-making, business or other concern, if it were possible for the staff member or the profit-making, business or other concern to benefit from such association or financial interest by reason of his or her position with the United Nations." Obviously, outside activities resultingln conflict of interest may not be authorized. 11. As stated in the applicable rules of the Organization, you should receive the approval of the Secretary-General in order to continue your membership in the Club and participate in its General Assembly. Whether such approval should be granted is a pojicy decision that will involve consideration of the relevant provisions of Staff Regulation 1.2, Staff Rule 1012 and ST/AJ/2000/13, as well as the issues discussed above.
12, Whereas certain of the risks and concerns that we have identified may be present in the circumstances of your case, it would appear that they are not significant In our view, it is unlikely that there would be a legal impediment to your continued membership in the Club, including your participation in its General Assembly.
cc: Mr. Mark Malloch Brown NATIONS UNIES Wf4$I»rH® YmMmV UNITED NATIONS LE HAUT COMMISSAIRE V$&KM NilWliK THE HIGH COMMISSIONER POUR LES REFUGES Nfi£35W >k M FOR REFUGEES
Case Postale 2500 1211 Geneve 2 Suisse
11 July 2005
Dear Mr. Michel,
I took up my official duties as United Nations High Commissioner for Refugees on 15 June 2005 and would like to request the advice of the Office of Legal Affairs on a question of membership in a non-United Nations association.
In preparation for my entry into the UN system last month, I resigned from or ended my association with a number of organizations. My guide was the belief that any appearance of, or actual, conflict of interest or divided allegiance could harm UNHCR and the UN in general and should obviously be avoided. This principle is clearly set out in both the UN Charter and the UN staff rules and regulations.
However, despite my close reading of these two documents since my nomination by the Secretary-General in May (and an opinion on the matter from the UNHCR Legal Affairs Section) it is unclear to me precisely which outside activities would be proscribed by Article 100(1) of the UN Charter and Staff regulation 1.2 (o).
Specifically, I am a member of the Club of Madrid - a non-governmental organisation whose statute is attached herewith. I have been a member of the Club for three years. The Club of Madrid has asked me to participate in their General Assembly in September 2005.
I would therefore appreciate advice from the OLA as to whether I am permitted under UN rules to continue as a member of the Club of Madrid and if I would be allowed to accept invitations from the Club which include air travel and accommodation?
I thank you in advance for your advice and my Office remains at your disposal for any further clarifications.
Yours sincerely,
Antonio Guterres
Mr. Nicolas Michel The Legal Counsel Office of Legal Affairs United Nations Headquarters New York LEGAL CHARTER OF THE CLUB OF MADRID
Background. The former Heads of State and Government who attended the Conference on Democratic Transition and Consolidation held in Madrid in October 2001 resolved on that occasion to set up a permanent institution that would ensure the effective implementation and success of the initiatives arising out of the Conference.
To this effect, they agreed upon the basic content and international purpose of that institution, founded in the city where the Conference was held, and in observance of legal requirements under Spanish legislation relevant to this type of institutions.
Article l.- Name. The Club of Madrid, as the institution is officially named, has been founded as an association in Madrid. As such, it is, therefore, subject to the laws governing associations in Spain and shall fall under the tax regime applicable to entities that serve public purposes from such time as when the Association is granted said status.
Article 2.- Domicile and scope of action. The address of the Association's headquarters is Felipe IV, no. 9, first floor-right, although it may be moved to other cities or countries by virtue of a resolution adopted by its General Assembly. If that happens, it would be governed by the laws of the country to which it is moved, without prejudice to the existence in Spain of a Chapter or Representative Office as described below.
The Club of Madrid may set up delegations called Chapters or Representative Offices in any country anywhere in the world should its governing bodies likewise adopt a resolution to do so.
Article 3.- Term of activity. The Association is established for an indefinite period of time.
Article 4.- Purpose. The purpose of the Association is to cooperate with and foster all kinds of initiatives whose goal is to strengthen and consolidate democracy around the world and especially to enable the transition of non- democratic countries to democracy.
To this end, the Association intends to carry out, inter alia, the following activities. It shall: i. Act as an advisory body or support group to any State in a process of transition to democracy or its consolidation that may request the Association to do so. 2. Disseminate up-to-date information about any of the areas discussed at the Madrid Conference. 3. Prepare reports on the situation of countries involved in a process of transition to democracy or its consolidation.
4. Organize meetings and conferences on issues falling within its purposes.
The Association may also seek to reach its goals by undertaking the following complementary activities. It may:
1. Draw up recommendations or prepare general, regional or country reports on its own initiative or at the request of third parties.
2. Organize working groups or task forces to cooperate in democratic transition or consolidation processes.
3. Promote, foster, or cooperate in sociological, political or economic analysis work or research on democratic transition and consolidation. 4. Coordinate its actions and collaborate with other institutions sharing the same goals as those of the Club of Madrid. Article 5.- Members. The Association shall include the following different types of membership: full members, institutional members, honorary members, and advisors. Article 6.- Full members (I). Full members shall be:
a) Former Heads of State and Government who participated in the Conference on Democratic Transition and Consolidation held in Madrid in October 2001 and who express their wish to join. b) Heads of State and Government who participated at the said Conference and who may be invited to join the Club of Madrid once their term as Head of State or Government comes to an end. c) The former Heads of State and Government of countries that have undergone a process of transition and consolidation of democracy since 1975 and who are accepted by absolute majority of the General Assembly of the Club of Madrid on the motion of the Executive Committee. Article 7.- Full members (II). Former Heads of State and Government of historically democratic countries may also be invited to join as full members provided that: a) their number never exceeds 20% of the full members referred to in the previous article; b) they are proposed by the Executive Committee or three full members; c) their membership is ratified by the General Assembly.
Article 8.- Institutional members. The General Assembly may invite public or private institutions with the same or similar objectives as those pursued by the Club of Madrid to join as institutional members. Their official representatives shall act on their behalf.
Article 9.- Honorary members. The General Assembly may appoint authorities or other personalities, or public or private institutions as honorary members in recognition of their contribution and support to the founding of the Club of Madrid or its work.
Article 10.- Advisors. Experts who participated in the Conference on Democratic Transition and Consolidation held in Madrid in October 2001 may be invited to join the Club of Madrid as advisors.
On the motion of the Executive Committee, the General Assembly may also invite renowned scientists or academics to become advisers to the Club of Madrid.
Article 11.- Capital. The Association's capital comprises any assets that may be freely donated by individuals, corporations, or institutions, or funds received from the Association's remunerated activities, or subsidies of any kind.
Article 12.- Governing bodies. The Association's governing bodies are the General Assembly, the Presidency or, as appropriate, the Vice-presidency, the Executive Committee, and the General Secretariat.
Article 13.- General Assembly. The General Assembly is the highest body of representation and governance of the Club of Madrid. It is composed of former Heads of State and Government who are members of the Club of Madrid, of the Presidents and one other member of each of the constituent Foundations that organized the Conference, as well as the Secretary General, all of whom shall attend and participate in meetings with entitlement to vote. All other institutional, honorary, or advisory members of the Club may participate in the meetings but shall not be entitled to vote.
The General Assembly is granted all the powers corresponding under Spanish legislation to the highest level body of governance and representation of an association and in particular those stated as follows:
• Approval of the Club's different activities in fulfilment of its objectives, especially those that involve acting in countries undergoing democratic transition or consolidation.
• Approval of reports on the situation of democracy around the world.
• Approval of reports on the Association's condition.
• Approval of specific reports as and when proposed by the Executive Committee.
• Approval of the incorporation of new members into the Club of Madrid under any of the options provided for in Article 6 of this Charter.
• Election of the President or Vice-president.
• Election of Executive Committee members with a two-year term of office.
• Ratification of the appointment of the Secretary General.
• Annual approval of the Association's activities report, budget and accounts.
Article 14.- Meetings and the adoption of resolutions. The General Assembly shall meet at least once a year and shall be deemed validly constituted whenever the President, Vice-president, or acting President are actually present or are represented by full members. For a valid meeting, one member of each one of the constituent Foundations and other full members also must be physically present. Altogether, there must be no fewer than ten people physically attending or represented at the meeting for it to be valid and at least three of them must be former Heads of State or Government who are physically present. The Secretary General must be present for there to be a quorum.
Decisions must be taken by majority, except in cases of modification of this Charter or exclusion of any of its members or dismissal of appointed officers or any others stipulated under Spanish law. In all of those cases, absolute majority will be required. Article 15.- Executive Committee. The Executive Committee is composed of the President, and/or the Vice-president, two members from each of the constituent Foundations, the Secretary General, and at least five full members, elected by the General Assembly for a two-year period. The Executive Committee shall meet at least twice a year. In addition to any powers and aims conferred upon it by the General Assembly, it also shall be mandated under this Charter to approve any draft reports, new members, and appointments, together with the annual report, budget and accounts, that need to be carried out or, if appropriate, proposed to the Assembly.
The quorum required to adopt valid resolutions shall include the following persons physically present at the meeting: the President or acting President, one member of each of the constituent Foundations and full members. Altogether, the quorum requires no fewer than six people either physically present or represented, of whom at least three should be former Heads of State or Government. In addition, the Secretary General must be present for there to be a quorum. Resolutions must be adopted as in the case of the General Assembly.
Article 16.- Convening of meetings and meeting procedures. The President, or acting President, or the Secretary General on his or her behalf, shall convene Executive Committee meetings upon the recommendation of the Secretary General. The General Assembly will be similarly convened on the recommendation of the Executive Committee.
The President shall chair the meetings of the Association's governing bodies. The President can break a tie vote.
The Vice-president of the Club of Madrid or whoever has been designated by its members to act as Chair may stand in for the President.
Article 17.- Secretary General. The Secretary General is appointed by the Executive Committee and ratified by the General Assembly. The Secretary General prepares and submits to the Executive Committee all reports, proposals, activities report, budget and accounts that must obtain final approval from the Executive Committee or that require subsequent submission to the General Assembly.
With the help of a small group of advisors, the Secretary General is responsible for the routine operations and the coordination of the activities of the Club of Madrid in order to fulfil its goals. Article 18.- Associated Clubs. Associated Clubs may be set up in a country where any of its nationals are members of the Club of Madrid under any of the options in article 6. The Associated Clubs shall be subject to the laws of the countries where they have been founded.
Associated Clubs shall enter into an association agreement with the Club of Madrid, to be approved in each case by the Executive Committee and ratified by the General Assembly. These arrangements shall be subject to the rules and regulations on Associated Clubs adopted by the governing bodies of the Club of Madrid. The activities of the Associated Clubs shall require authorization by the Executive Committee and shall be coordinated with the Secretary General in all cases.
Article 19.- Interpretation of the Charter. The General Assembly is exclusively authorized to interpret and develop this Charter.
If necessary, the Secretary General or the Executive Committee may provisionally interpret provisions of this Charter in the event of any doubt, contradiction or gap until such time as the Executive Committee (provisionally) or the General Assembly (definitively), at the next meeting, can resolve those doubts, disputes, or gaps.
Article 20.- Administration and accounts. The Secretary General is responsible for the routine administration and compliance of the financial accounts with the requirements of Spanish laws. Article 21.- Dissolution. The dissolution of the Club may be decided by a majority of 2/3 of the full members.
Once the decision has been taken, the Association shall go into liquidation during which time its affairs will be wound up and liquidators appointed for the process as stipulated by law.
In such a case, the destiny of the assets and capital will be any other institution with the same or similar goals.