4 March 2009
The lead article in the March 2009 issue of ITN regarding the election of Ms. Kinnear as ICSID Secretary-General is couched in unfortunate prose. The author seems to advocate a political role for the incoming Secretary-General. Indeed, the article states: “In light of the attention ICSID receives, the role of the Secretary-General will be political, as well as administrative.”
This language is objectionable and would likely do the office of the Secretary-General harm. It also may not give attention to Article 10(2) of the ICSID Convention: “The offices of Secretary-General and any Deputy Secretary-General shall be incompatible with the exercise of any political functions.” The travaux preparatoires of the ICSID Convention make clear that this clause was contained in all drafts of the Convention.
The injunction is absolute. An early draft of the Convention suggested that the political incompatibility clause be subject to a possible waiver by the ICSID Administrative Council with the concurrence of the Chairman of the Administrative Council. The purpose of this possible waiver was “so as not to exclude altogether persons who held such minor and completely non-controversial political offices as, for instance, membership of a local education board.” (Remarks by A. Broches, Second Session of the Asian Regional Meeting, April 28, 1964, discussion on sections 8-10). At the same Session, Broches remarked that the office of the Secretary-General was a staff post, rendering it incompatible with political functioning (likely a breach of World Bank employment terms).
Later that year, the matter was discussed again at the Legal Committee (who ultimately crafted the Convention). The minutes of the meeting held on the afternoon of November 30, 1964, record: “Mr. Funes (El Salvador) requested to know whether the provision of incompatibility with the exercise of any political function would mean incompatibility with any political office. Mr. Broches (Chairman) replied that this indeed was the intention.”
The ICSID Convention adopted by over 140 sovereign states provides no possibility of waiver of the political incompatibility clause. Further, the political incompatibility clause was delinked from the bar on the Secretary-General holding any other employment.
One may conclude apparently that (a) the bar on the Secretary-General operating politically is absolute; (b) the meaning of political function is wide-reaching and includes even minor political offices; (c) by virtue of delinking the political incompatibility with the clause prohibiting the Secretary-General from holding any other office or employment makes clear that political function goes beyond being an officer of a political body, howsoever minor.
It follows that it could be incompatible with the office of the Secretary-General for him or her to function pursuant to certain political views, or to officially advance them, whatever his or her disposition towards those views or those advancing them. The reason is simple: the Secretary-General’s office is akin to a court registrar; neutrality is paramount, special interest shunned.
I hope the newsletter would be more careful in portraying the office of the Secretary-General in future.
Contrary to what the March 2009 ITN Newsletter states, the position is very clear: the role of the Secretary-General is purely administrative and is not political. To make the office compatible with political functioning would only serve to dilute the neutrality of the Secretary-General and, consequently, of the ICSID Convention — undermining its reputation and major asset. This would make it harder for ICSID to function effectively and in the interest of all. Politicisation of the office would be a most unfortunate development.