Implied Powers of the United Nations

Introduction:

“Under International law, the Organization must be deemed to have those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties.”[1]

 After the First World War, the League of Nations was established in 1919 under the Treaty of Versailles “to promote international cooperation and to achieve peace and security.” However, the League failed in achieving its goal was not able to avert the Second World War. The failure of the League of Nations did not destroy the conviction, shared by many that only by some form of general organization of States of states could a system of collective security be achieved which would protect the international community from the bane of war.[2] The Allies even in 1941 were calling themselves “United Nations” and this was recognized by the Moscow Declaration which talked about the necessity of establishing at the earliest date a general international organization based upon sovereign equality of all peace loving states for the maintenance of peace and security.[3] The name "United Nations", coined by United States President Franklin D. Roosevelt, was first used in the "Declaration by United Nations" of 1 January 1942, during the Second World War, when representatives of 26 nations pledged their governments to continue fighting together against the Axis Powers. The formulation of such an organization took shape with a number of conferences such as in Tehran in 1943, at Dumbarton Oaks in 1944, at Yalta in 1945 and finally at the San Francisco where the UN charter was drafted. The United Nations officially came into existence on 24 October 1945, when the Charter had been ratified by China, France, the Soviet Union, the United Kingdom, the United States and a majority of other signatories. United Nations Day is celebrated on 24 October each year.

International organizations can only work on the basis of their legal powers. Thus, the organizations have acquired certain powers to found their actions and if they act beyond those powers, then it can be disregarded at least theoretically.  The powers conferred on international organizations are normally the subject of an express statement in their constituent instruments.[4] Nevertheless, the necessities of international life may point to the need for organizations, in order to achieve their objectives, to possess subsidiary powers which are not expressly provided for in the basic instruments which govern their activities. The constituent documents of an organization necessarily come with gaps simply because the drafters cannot be expected to think of every possible contingency; and because it may be expected that internal dynamics will move the organization forward. Therefore in those circumstances the organization should not be only limited by those powers granted to it upon its creation. The organization must be allowed certain powers which are not granted expressly but are granted by implications. In this context, the doctrine of implied powers, which is at the heart of most of the talk about the powers of an international organization.[5] There is a general consensus among the statesmen regarding the existence of the implied powers and the importance of the implied power especially in the present day context with a number of changes taking place.    

The first part of the paper will mainly deal with the theoretical aspect of the implied powers. In this regard, the differences between the doctrine and other similar doctrines will be highlighted for clearer understanding of the concept. The second part of the paper will analyse the views of the International Court of Justice’s stand on the implied powers of the United Nations. In this regard, the advisory opinion of the ICJ in the Reparation for Injuries Suffered in the Service of United Nations[6] will be analysed. The last part of the paper will deal with the power of United Nations in peace keeping. The power of peace keeping is not expressed in the UN Charter but it is implied from various other provisions in the Charter.

Chapter I:

The Doctrine of Implied Powers:

International Organization always needs to have a legal basis for their activities which should be in accordance with the principle of attributed or expressed powers. The organization need to function according to the powers which have been attributed or expressed in various forms. However, it is not possible to make an exhaustive list of powers of an organization in the constitution because, any organization for that matter needs to respond to the development in practice which cannot be foreseen when it is created.[7] Therefore for this reason other form of powers exists such as customary and implied powers.

This doctrine was developed by American lawyers such as Alexander Hamilton in the early years of the American independence and, it says that the American federal government not only has the powers that are explicitly conferred on it in the Constitution, but also the powers that are necessary to exercise these powers and the powers necessary to reach the objectives of the federal government as they are given to it by the Constitution. More generally, the term implied powers can be used in all circumstances where an organization has a competence that is not based on the interpretation of its conferred powers but rather on a systematic and teleological interpretation of the laws that govern its actions in general.[8]

The doctrine of implied powers has played a crucial role on the development of the law of the international organization. According to most of the scholars, there are at least two ways in which the implied powers can be or found to have exist. The first view holds that it flow from rule of interpretation which says that the treaty rules must be interpreted in such a way as to guarantee their full effect.[9] This view has been embraced by the Permanent Court of International Justice in its advisory opinion of 1928 on Interpretation of the Greco-Turkish Agreement of December 1st, 1926. The Greco-Turkish agreement had created mixed commission and laid down in the agreement that incase the mixed commission could not reach an agreement, that resort to arbitration must be had. However, it failed to identify the party or parties entitled to resort to arbitration however, the Court found that ‘from the very silence of the article on that point, it is possible and natural to deduce that the power to refer a matter to the arbitrator rests with the mixed commission when the body finds itself confronted with the questions of nature indicated.[10] Thus it can be seen in this case that the Court implied the power in the existence of another explicit power. The second view as far as the formulation of this doctrine is concerned comes from the dissenting opinion of Justice Green Hackworth in the advisory opinion in the Reparation for Injuries.[11] Justice Hackworth wrote that ‘powers not expressed cannot freely be implied. Implied powers flow from grant of express powers and are limited to those that are necessary to exercise of powers expressly granted.’[12] This case will be analysed in detail in the next chapter.

The doctrine of implied powers is based on the inherent authority that is contained in the charter. Some International Organization charters have expressly authorized its organs to assume implied powers. However, the doctrine has been applied even with the respect to organizations whose charters contain no such reference.[13] The doctrine is the result of “principle of effectiveness” as has been applied by the International Court of Justice.

The principle of effectiveness is used in order to give effect to the provisions in accordance with the intention of the parties and in accordance with the rules of international law.[14] The principle of effectiveness has been used in a dynamic manner in two areas. In the case of treaties that operate as the constitutional documents of an international organization a more flexible method of interpretation would seem to be justified, since one is dealing with an instrument that is being used in order to accomplish the stated aims of that organization. This approach has been used as a way of inferring powers, which are not expressly provided for in the constitutional document of the organization. In other words the doctrine of implied powers has resulted out of this principle. This programmatic interpretation doctrine in such cases is now well established and especially relevant to the United Nations.[15] Institutional organs have similarly justified such powers as being ancillary to the powers which are expressly authorized or needed to assure the “effectiveness” of authorized action. Thus, the Security Council has justified its decisions authorizing members to used force to implement economic sanctions on the grounds that the authority for such measures to make Article 41 sanctions effective even though it is not specifically mentioned in Chapter VII of the Charter.[16] Implied powers are usually premised on “functional necessity”, they are sometimes applied to justify powers deemed “essential” for carrying out not merely explicitly conferred powers but also permit achievement of expansive charter “purposes”. The doctrine has been cited to permit achievement of an organization to undertake action that is not, strictly speaking “essential” or “necessary”, but is merely desirable or consistent with the charter powers and aims.[17]   

Implied Powers vis-a- vis Customary Law:

Implied Powers should be distinguished from the customary powers. The basis for implied powers are the powers explicitly attributed to the organization in the constitution. However, on the other hand the basis for customary law postdates the constitution: during the life of the organization, member states may consent to new powers for it. Thus implied powers are the powers attributed to the organization at its creation, while on the other hand, customary laws are attributed subsequently.[18] According to Skubiszewski, the implication of power means that a term is being read into the organization’s statute not in order to modify it or add to the members’ burdens, but in order to give effect to what they agreed by becoming parties to the constitutional treaty. There is more controversy surrounding the implied powers than in the customary laws because the course of time might change the scope of power members want to attribute to an organization.[19]

The difference between a customary competence and an implied power is that, while the custom is a separate source of law, the implied power is based on the treaty or constitution. All law is either written or unwritten, and although it might seem otherwise, the doctrine of implied powers is based on written law.[20]

Implied Powers vis-à-vis Attributed Power:

According to the doctrine of attributed power, the organization can only work on the basis of the powers which have been specifically attributed to them. In other words, the basic idea behind attribution is that the international organization and their organs can only do those things for which they are empowered.[21] The UN Charter promises member states that the UN shall not intervene in the matters which are essentially within their domestic jurisdiction.[22] The doctrine of attribution finds its rationale in the manifest will of founders. The founders have found it necessary to grant their organization certain powers, and this must be respected. Powers which are not expressed are the result of intentional omissions on the part of the founders.[23] However the principle of attribution encounters at least a theoretical and a practical one. Theoretically, if the idea of attributed power is taken in extreme then, the organizations are nothing more than the mouthpieces of the member states. If the power of the organization is limited to only those powers which are granted then the organization remains merely a vehicle for the member states rather than an organization with the distinct will of its own.

                        The practical problem is the one which should be dwelled upon with greater importance. The notion of attributed power though brings about certainty regarding the powers of an organization, however, the organizations are usually held to be of a dynamic nature. It is accepted that the founding father can never completely envisage the future as there is constant development and need for a change with the changing times.[24]       

Limitations of Implied Powers:

The doctrine of implied powers has played a useful role when the organizations were still in development and, more so when the very phenomenon of the international organization was still developing. It seems that at least in some of the more settled organization, the doctrine has become outdated.[25] There are at least four limits to the doctrine of implied powers. The first one is that the recourse to the implied powers concerned must be necessary or essential for the organization to perform its functions, as has been mentioned in its advisory opinion by the International Court of Justice in the Reparation For Injuries.

                        The second limitation is the existence of certain explicit powers in the area concerned. On the limitation if the implied powers, Campbell has said that “the exercise of powers would have to be such that it would not substantially encroach on, detract from, or nullify other powers.” [26] On one hand it is difficult to accept that the use of implied powers may violate explicit powers. On the other hand, if certain powers are enumerated explicitly but their use encounters difficulties, it is arguably too strict to prohibit the organization from using any other powers if this would mean that otherwise it cannot perform the functions.

                        The third limitation is that the use of implied powers may not violate fundamental rules and principles of international law. In support of this argument, the ICJ in the Namibia opinion, the Council’s power to adopt the resolution in question was limited by ‘certain general conventions such as those of a humanitarian character.[27]

                        The fourth limitation is that implied powers may not change the distribution of functions within an organization. This limitation was important in the Certain Expenses[28] case in which one of the core question was the scope of the powers of the General Assembly in the area of maintenance of international peace and security, which if usually the primary responsibility of the Security Council.[29]

Implied Powers vis-a-vis Implied Functions:

The difference between implied powers and implied functions comes from the advisory opinion in Certain Expenses of the United Nations, The concept of implied functions as introduced by the Court relates to those tasks which, although not expressly granted to an organization, are ‘necessary for the fulfillment of its ends.’ According to these writers, while the 'implied powers' could be exercised automatically by an organization in order to fulfill its functions, no similar claim could be made with reference to the 'implied functions'. These could only be undertaken by the organization either by an autonomous assumption of new powers towards the effective fulfillment of its ends or else through the presence of very general provisions in the constituent instrument showing the will of the member States to grant the organization all the necessary functions for the fulfillment of its aims.[30] 

The Reparation For Injuries Suffered in the Service of United Nations Case: An Analysis

The advisory opinion given by the International Court of Justice in 1949 and concerning The Reparation For Injuries Suffered in the Service of United Nations, constitutes a leading case on the legal personality of the United Nations. The court in this case considered and found out that the functions and rights conferred to the United Nations by its constituent instrument necessarily implied the attribution of international personality of the organization. This case dealt by the ICJ more than 60 years ago has been referred in the number of writings relating to the personality of the International Organization.  

                        The facts of the case was that on September 17th, 1948, Count Folke Bernadotte, the United Nations mediator in Palestine, French Colonel Andre Serot and several members of their team, were assassinated in Jerusalem by radical Zionists. Normally, when a diplomat is injured in the line of duty, his or her government can demand that damages be paid by the government of the state where the attack occurred, but in this case, Count Bernadotte was there working for the United Nations. When the UN contacted the Israeli government, the Israelis argued that the UN did not have the competence to demand reparation, as this competence is not explicitly listed in the UN Charter. When the General Assembly asked the International Court of Justice (hereafter: ICJ) for its opinion, it ruled that clearly the Charter gave the UN the power to send out its

personnel to conflict areas. Moreover, the ICJ decided that, without the right to demand compensation, it would be difficult if not impossible for the UN to find people willing to be sent to such troubled areas. Therefore, the right to demand compensation is necessary for the power to send out personnel to have any meaning. Denying the UN the right to demand compensation would make it all but impossible for the organisation to reach its objectives, so the right to demand compensation must be considered to be implied by the other powers of the organisation, that are listed explicitly in the Charter.

                        The Reparation Case has provided the legal basis allowing international organizations to take on roles traditionally afforded to States. The court noted that organizations such as the U.N. had capacity similar to a State. In this case the court before answering the question of capacity of the UN to bring an international claim dwelled on the aspect, whether the Charter has given the organization such a position it possesses, in regard, of its members, rights which it is entitled to respect. In other words, does the organization posses international personality?”[31] In answering this question which is not settled by the actual terms of the Charter, the Court goes on to consider what characteristics the Charter was intended to give to the Organization. In this connection, the Court states that the Charter conferred upon the Organization rights and obligations which are different from those of its Members. The ICJ in this regard said,

“Accordingly, the Court has come to the conclusion that the Organization is an international person.   That is not the same thing as saying that it is a State, which it certainly is not, or that its legal personality and rights and duties are the same as those of a State.   Still less is it the same thing as saying that it is ‘a super-State‘, whatever that expression may mean.   It does not even imply that all its rights and duties must be upon the international plane, any more than all the rights and duties of a State must be upon that plane.   What it does mean is that it is a subject of international law and capable of possessing international rights and duties, and that it has capacity to maintain its rights by bringing international claims.”[32]

International personality is thus identified with the possession of rights and has come to be recognized in relation to Member States. In the case, the International Court of Justice (“I.C.J.”) held that the U.N. had legal personality based on the notion of functional necessity.[33] This theory implied that the U.N. did in fact have some degree of international legal personality, though this personality did not rise to the level of a State. The recognition of functional necessity as the basis for U.N. capacity has allowed for significant expansion of the roles which the U.N. may undertake so much so that the U.N. arguably behaves as a State more so than an international organization.[34] Therefore the court stated that the International Personality of the United Nations was found to be necessary in achieving the objectives assigned to the organization. The court while stating this fact also found evidence of this Charter by mentioning the relevant factors such as existence of organs and tasks; obligation for member to give assistance to the organization in action undertaken by it, and recognition of the legal capacity.[35]

                        Therefore this is the first case where the court held that the United Nations has all the powers that are expressed in the Charter and also those powers which can be implied from reading the provisions of the expressed powers. This is the first case in which it was held that the United Nations could exercise powers which can be implied from the provisions of the charter. In this case it was found that the United Nations as an organization had the capacity to bring an international claim against a state even though this has not been expressly mentioned in the Charter. The international legal personality of the United Nations was recognized by the International Court of Justice.

Chapter VI and ½ of the UN Charter:

Peacekeeping Functions

Peacekeeping is a form of collective action by which a considerable military force is used to bring about a cessation of hostilities. The UN defines peacekeeping as “as an operation involving military personnel, but without the enforcement powers, undertaken by the United Nations to help maintain or restore international peace and security in areas of conflict.”[36] The expression ‘peace-keeping’ has not been used in the UN Charter and it has gained importance as a consequence of practice, precedent and doctrine.[37] The Charter originally did not anticipate military forces, deployed under UN authority, interposing themselves between parties to an armed conflict. However, the Charter is a flexible political document containing many possibilities and interpretations, depending upon the international situation. It is conventional wisdom that the implied or inherent powers of international organizations may provide the basis for actions that are not expressly warranted under their constituent instruments.[38] The creation of peacekeeping is the pragmatic realization of one of these possibilities. In the words of a former UN Under Secretary-General for Political Affairs, “The technique of peace-keeping is a distinctive innovation by the United Nations. The Charter does not mention it. It was discovered, like penicillin. We came across it, while looking for something else, during an investigation of the guerrilla fighting in northern Greece in 1947.”[39]

Article 1, denotes that the primary purpose of the UN is to maintain international peace and security. It follows that the UN should be empowered with the means to fulfill its purpose. The powers of the UN can not be ascertained by construing the Charter strictly. To do so would severely constrain the UN and could prevent it from ever acting. The UN must have implied powers to allow it to act to achieve its chartered mandate. Through its implied powers, the UN has created peace observer and peacekeeping units as an approved method of fulfilling its primary purpose. Although peacekeeping operations are not specifically mentioned in the UN Charter, the International Court of Justice established that the Charter was sufficiently broad enough to allow the Security Council to monitor a conflict without having to resort to a Chapter VII peace-enforcement action.[40]

Chapter VI and 1/2 of the UN Charter

Fifty years ago, U.N. Secretary-General Dag Hammarskjöld famously observed that the legal basis for U.N. peacekeeping may be found at "Chapter VI 1/2 " of the U.N. Charter.[41] Bialke in his article is of the opinion that Peacekeeping operations loosely developed out of the UN Charter, specifically, Chapter VI, entitled "Pacific Settlement of Disputes." Chapter VI directs that the Security Council may investigate situations that might lead to potential conflict. The Security Council, after considering any dispute settlement-procedures previously adopted by the parties to the conflict, may make recommendations to resolve the conflict.[42]  The provision for the power of peacekeeping lies in the grey zone between the peaceful settlement provisions of Chapter VI and military enforcement provisions of Chapter VII. Therefore, the provision is sometimes referred to as “Chapter VI and a half.”[43]  Therefore it becomes important to look at the two chapters of the UN Charter.

Chapter VI of the UN Charter:

Chapter VI of the Charter deals with the procedures of the pacific settlement of disputes. Certain authors believe that the chapter is not suitable for the establishment of the peace-keeping forces. In this context, according to Dan Ciobanu, “it is impossible to find a constitutional basis for the peace-keeping operations in Chapter VI, because these operations may, to a certain extent, involve the use of force, which is in no way an element of the pacific settlement of disputes.”[44] However, the power under chapter also deals with situations that may endanger international peace and security. According to Article 36(1) of the Charter, the Council may “recommend appropriate procedures or methods of adjustment”[45] for such situations. The question lies as to how does chapter VI of the Charter provide legal basis for the establishment of peace. The provision prima facie deals ‘only’ with the adjustment of situations, as understood ‘narrowly’ within the dispute settlement perspective. However, the ICJ has not interpreted the “appropriate procedures or methods of adjustment” of Article 36 so narrowly. The ICJ in Certain Expenses affirmed that Article 11(2) and Article 14 of the Charter provide for powers to the General Assembly, similar to those powers given to the Council under Article 36, and may serve as a basis for establishment of the peacekeeping operations. Therefore, the Security Council-the organ with the primary responsibility for maintaining international peace and security-may exercise a power which may also be exercised by the General Assembly.  

Hans Kelsen correctly observes that the recommendations made by the Security Council on “procedures or methods of adjustments” under Article 36(1) do not relate to a substantive settlement of a dispute or a situation, but merely to the procedural aspects thereof. With regard to disputes, he concludes that “procedures or methods” under Article 36(1) are identical to means of settlement of disputes under Article 33(2).”

the Council may recommend all methods of adjustment that it considers appropriate to prevent the continuance of a situation which is likely to endanger the international peace and security. Peace-keeping operations, which do not relate to the substantive terms of settlement, but constitute only the methods of adjustment, naturally fall within this category. Peace-keeping operations may thus be initiated on the basis of recommendations under Article 36(1).” Therefore, Chapter VI of the UN Charter may provide a legal basis for establishment of the peace-keeping forces.

Chapter VII of the UN Charter:

Chapter VII of the UN Charter consists of the action that the Security Council can take if there is threat to the peace, breach of peace and acts of aggression. Article 39 of the UN Charter says that the Security Council may either take coercive measures or make recommendations with a view of maintaining or restoring   international peace and security. Recommendations under this article may undeniably provide a legal basis for the peace-keeping operations.[46]

According to Articles 41 and 42, the Council can exercise wide discretion in choosing the measures it will apply.26 There are no Charter-based limitations on the powers of the Council as to the nature of measures under Chapter VII, and these measures are not strictly limited to the enforcement.  Therefore, peace-keeping operations may constitute part of an enforcement action taken by the Security Council pursuant to Articles 41 and 42.However, the ICJ in the Certain Expenses case said that peace keeping operations are not enforcement actions. Therefore many say that Article 41 and 42 cannot be the basis for the peace keeping operations because the articles deal with the enforcement functions.

However, Article 41 and 42 consists of illustrative list of enforcement actions does not a priori exclude establishment of the peace-keeping forces as a part of the action by the Council under Chapter VII.[47] According to Article 41 “The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions.”[48] Under Article 42, the Council “may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security.” Therefore it is clear that these provisions do not strictly confine to the enforcement. Therefore, peace-keeping operations may constitute part of an enforcement action taken by the Security Council pursuant to Articles 41 and 42.

Article 39 however states that, “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security. Therefore the enforcement measure is limited under the two provisions that has been mentioned in the article. Therefore there is some kind of limitation in the article. These limitations are considered to be of a negative nature rather than positive nature. It does not mean that the Council's role after making a determination under Article 39 is limited solely to enforcement measures.

Other argument on this point is that Article 41 relates only to non- military enforcement measures which mean that the military enforcement measures are excluded. Therefore, peace-keeping operations cannot fall under that category. The fact that the peace-keeping forces may use force in self-defense does not place them in the category of enforcement measures directed against a State or a non-State entity. A peace-keeping mission may be transformed into a peace-enforcement mission. This transformation takes place without requiring the consent of the parties. The difference between peace keeping and peace-enforcement missions is also crucial for determining the allocation of powers between the UN and regional organizations. The latter are empowered to establish the peacekeeping missions, but not to perform the enforcement actions.

Peace keeping gained importance especially during the Cold War in promoting peace and security during the Cold war. The UN through this was able to play positive role in dealing with regional conflicts between the East and the West when the provisions of the Charter for collective security and enforcement was prevented. However, it has taken different forms and evolved significantly after the end of the Cold War.[49]

Conclusion

Therefore, it is clearly seen that there has been an implication of power by the United Nations. However, there is no consensus as to which power of which organ may serve as a basis for the establishment of peacekeeping operations. The International Court of Justice, which could clarify this issue by way of an obiter dictum, refuses to specify which articles of the UN Charter may serve as the basis of the peace-keeping operations[50]. Classical peacekeeping customs and norms have developed over fifty years of operations. The characteristics of impartiality, consent of the parties, command and control of the UN force by the Secretary-General, and most importantly, the use of force limited to circumstances involving self-defense have led to successful missions and the protection of peacekeepers. However, as peacekeeping missions become more robust, missions have become ambiguous and peacekeepers endangered. To better the chances of mission success, ensure the mission is performed in accordance with international law, and to provide more protection to the peacekeepers themselves, the UN must clearly define the different forms of peace operations. The UN must lead a coherent and determined effort to keep peacekeeping missions distinct from peace-enforcement missions. Additionally, the UN must collectively strive to fill the recognized gaps in the international law of armed conflict regarding its application to UN peace operations.

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Charter of United Nations

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