The United Nations and perspectives on good governance
The United Nations: Empowered by the member States
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.
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
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
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
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.
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
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
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.
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
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
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.
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
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
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.