The United Nations and perspectives on good governance

Dr. Ruwantissa ABEYRATNE

Current political and diplomatic problems mostly emerge as a result of the inability of the world to veer from its self serving concentration on individual perspectives to collective societal focus.

This distorted approach gives rise to undue emphasis being placed on rights rather than duties; on short-term benefits rather than long-term progress and advantage and on purely mercantile perspectives and values rather than higher human values.

At the heart of international politics in the United Nations. Often one hears statements like “the United Nations failed”(for instance to stop the genocide in Rwanda or ethnic cleansing in the Balkans) or “the United Nations succeeded” (to stop the Iraqi occupation of Kuwait).

This misconception obfuscates the complex reality that the United Nations is basically an intergovernmental organization in which the key decisions are made by governments representing States.

In other words, the United Nations is empowered by the member States to carry on its tasks and not the other way around.

Although the Charter of the United Nations initially provides language starting with “we the peoples of the world” in effect the key players who call the shots in the United Nations system are the governments themselves. For instance, when it is said that the Security Council took a decision, what is meant is that representatives of fifteen States made that decision.

Councils

This is true also of the various specialized agencies such as the World Meteorological Organization and the International Civil Aviation Organization, both of which have Councils that take the decisions and are representative of member States.

Over its sixty years of service to the international community, the United Nations has, through its General Assembly and Security Council adopted numerous resolutions.

This article will examine the extent to which the Member States of The United Nations are bound by such pronouncements through a legal analysis of how far the United Nations Organization is empowered by States to adopt such resolutions and directives.

The first step toward such an examination would be inquire into the nature of the United Nations. It is represented and directed by its member States.

Therefore, it is incontrovertible that universal participation in the United Nations is indispensable if The UN were to effectively implement the provisions of the Charter of the United Nations. Sixty years of symbiotic existence have shown that States need the UN needs their membership.

An organization such as the UN is tasked primarily to provide a certain predictability about its members by promulgating norms for the conduct of its Contracting States. Of course not all those norms are binding and not all of them are adopted with the same degree of formality.

However, certainly all of them provide guidance to States. This situation has to mesh with the basic inquiry as to whether the UN, as an international organization, has been given direct authority over individuals or States.

Powers

The question arises as to whether a contracting State is formally bound by a Resolution of the United Nations, particularly when such a State has no convincing argument that it is impracticable to implement such a resolution. International organizations can generally only work on the basis of legal powers that are attributed to them. Presumably, these powers emanate from the sovereign States that form the membership of such organizations.

Therefore, the logical conclusion is that if international organizations were to act beyond the powers accorded to them, they would be presumed to act ultra vires A seminal judicial decision relating to the powers of international organizations was handed down by the Permanent Court of International Justice in 1922 in a case relating to the issue as to whether the International Labour Organization (set up to regulate international labour relations) was competent to regulate labour relations in the agricultural sector.

The court proceeded on the basis that the competence of an international organization with regard to a particular function lay in the treaty provisions applicable to the functions of that organization and that the determination of such competence would be based on interpretation.

In this instance the Court was of the view that, in its interpretation of the ILO treaty, the organization had the power to extend its scope of functions to the agricultural sector.

However, this principle of implied extension should be carefully applied, along the fundamental principle enunciated by Judge Green Hackworth in the 1949 Reparation for Injuries Case - that powers not expressed cannot freely be implied and that implied powers flow from a grant of express powers, and are limited to those that are necessary to the exercise of powers expressly granted.

The universal solidarity of the United Nations member States that was recognized from the outset at the establishment of the Organization brings to bear the need for States to be united in recognizing the effect of UN policy and decisions.

This principle was given legal legitimacy in the ERTA decision handed down by the Court of Justice of the European Community in 1971.

The court held that the competence of the European Community to conclude an agreement on road transport could not be impugned since the member States had recognized Community solidarity and that the Treaty of Rome which governed the Community admitted of a common policy on road transport which the Community regulated.

It should be noted that the United Nations does not only derive implied authority from its Contracting States based on universality but it also has attribution from States to exercise certain powers.

The doctrine of attribution of powers comes directly from the will of the founders, and in the United Nation’s case, powers were attributed to the United Nations when it was established as an international organization to administer the provisions of the UN Charter.

In addition, the United Nations could also lay claims to what are now called “inherent powers” which give the Organization power to perform all acts that the Organization needs to perform to attain its aims not due to any specific source of organizational power but simply because the United Nations inheres in organizationhood. Therefore, as long as acts are not prohibited in The UN Charter, they must be considered legally valid.

Duties

Over the past two decades the inherent powers doctrine has been attributed to the United Nations Organization and its specialized agencies on the basis that such organizations could be stultified if they were to be bogged down in a quagmire of interpretation and judicial determination in the exercise of their duties.

The advantages of the inherent powers doctrine is twofold. Firstly, inherent powers are functional and help the organization concerned to reach its aims without being tied by legal niceties.

Secondly, it relieves the organization of legal controls that might otherwise effectively preclude that organization from achieving its aims and objectives. The ability to exercise its inherent powers has enabled the United Nations to address issues that are not directly within its mandate but directly or indirectly impact its core functions.

Classic approach

With regard to the conferral of powers by States to the United Nations, States have followed the classic approach of doing so through an international treaty. However, neither is there explicit mention of such a conferral on the United Nations in the Charter of the UN, nor is there any description of the United Nations’ powers.

Of course the Security Council can impose sanctions on States that are deemed to act inconsistently with the principles oft the Charter Therefore States have not followed the usual style of conferral of powers in the case of the United Nations, which, along the lines of the decision of the International Court of Justice in the 1996 WHO Advisory Opinion case was that the powers conferred on international organizations are normally the subject of express statement in their constituent instruments.

This notwithstanding, it cannot be disputed that the United Nations member States have conferred certain powers on the UN to perform its functions independently. For example, the United Nations is a legal entity having the power to enter into legal agreements with legal entities including other international organizations with regard to the performance of its functions.

Conversely, an international organization must accept conferred powers on the basis of Article 34 of the Vienna Convention on the Law of Treaties which stipulates that a treaty does not create rights or obligations of a third State without its consent.

This principle can be applied mutatis mutandis to an international organization such as the UN. The conferral of powers on an international organization does not ipso facto curtail the powers of a State to act outside the purview of that organization unless a State has willingly limited its powers in that respect.

This principle was recognized in the Lotus Case where the Provisional Court of International Justice held that a State can exercise powers on a unilateral basis even while the conferral to the Organization remains in force. The Court held that restrictions upon the independence of States cannot be presumed.

The United Nations’ conferred powers enable the Organization to adopt binding regulations by majority decision. However, States could opt out of these policies or make reservations thereto, usually before such policy enters into force.

This is because States have delegated power to the UN to make decisions on the basis that they accept such decisions on the international plane. In such cases States could contract out and enter into binding agreements outside the purview of the United Nations even on subjects on which the UN has adopted policy.

Given the United Nations’ profile as a self standing legal entity, the Organization would be responsible for its internationally wrongful acts.

As to the issue whether a State which has delegated powers to the United Nations would be responsible for the wrongful acts of the Organization, a State is not bound by the Organization’s exercise of delegated powers and therefore it cannot be necessarily assumed that such acts would be attributable to the States unless such acts were the effect of the State’s own acts or omissions.

Article 1 of the Articles of Responsibility of the International Law Commission (ILC) expressly stipulates that every internationally wrongful act entails the international responsibility of a State.

The State cannot escape responsibility by seeking refuge behind the non-binding decision of an Organization in the case of delegation of powers. This is also the case where a State aids and abets an Organization to perform an internationally wrongful act.

Activities

The General Assembly and the Security Council are composed of Contracting States. The General Assembly has delegated activities concerning matters of international security to the Security Council as well as delegating other areas of work to other Councils of the UN such as the Economic and Social Council (ECOSOC) and the Trusteeship Council.

Therefore it would not be incorrect to assume that any resolution adopted or decision taken by the UN Security Council can be imputed to the member States of the UN which have delegated powers on these Councils.

Not bound

However, States retain the powers to act unilaterally and they are not bound to comply with obligations flowing from the Organization’s exercise of conferred powers. States which have delegated powers on the United Nations have the legal right under public international law to take measures against a particular exercise by the UN of conferred powers which is considered to be detournement de pouvoir, ultra vires or an internationally wrongful act with which the objecting States do not wish to be associated.

A State could also distance itself from the State practice of other Contracting States within the UN if such activity is calculated to form customary international law that could in turn bind the objecting State if it does not persist in its objections.

As discussed earlier in this article, a significant issue in the determination of The United Nations effectiveness as an international organization is the overriding principle of universality and global participation of all its member States in the implementation of UN policy.

This principle, which has its genesis in the Charter of the United Nations, has flowed on gaining express recognition by legal scholars. This is what makes the United Nations unique and establishes without any doubt that the UN is not just a tool of cooperation among States.

In the years to come, citizens of the world will scrutinize both their governments and those of foreign nations whose responsibility it is to ensure good governance and the continuity of the world communications systems. The politician, diplomat and lawyer will increasingly turn toward principles of international law to determine the best course of action in crisis.