The Charter of the Board of Peace: A Dubious Legal Personality and a Regressive Peacebuilding Mandate Unbound by Law

[Sanmay Moitra is a research assistant at ‘Human Rights in Practice’ and an Advanced LLM candidate at Leiden University. He has previously studied international law at the University of Oxford and Georgetown University.]

On January 18, the full text of a Charter for Donald Trump’s ‘Board of Peace’ (BoP) was made public. Although UNSC Resolution 2803 had first authorised and conceived of the BoP as only an “international transitional body” for Gaza (para. 9), its Charter now suggests a much broader scope. Far from being an oversight body, the BoP’s Charter conceives of the organisation as a wholesale alternative to the UN. The preamble makes this clear in its emphasis on “the need for a more nimble and effective peace-building body.”  As such, the BoP – with Trump as its Chairperson – now aspires to be a full-fledged international organisation (IO) with an explicitly expressed international legal personality (Art. 6(a)) and a mandate extending to “areas affected or threatened by conflict” globally (Art. 1).

At the outset, it seems unclear whether the BoP possesses international legal personality as an IO (as it claims to) at all. This is because claims to international legal personality as an IO under international law is not self-declaratory or self-executory; merely a claim to international legal personality is not sufficient. As Schermers and Blokkers note, legal personality as an IO depends on whether an organisation meets the defined criteria for such classification (paras. 32-33[A1] ). That is why it is “difficult to obtain general recognition of the status of an IO under … international law” (para. 37). Generally, for an organisation to be considered an IO under international law, it must meet three criteria: the organisation must have a constituent instrument which establishes its existence as an IO, it must be capable of expressing an autonomous will distinct to its members’ collective will (‘volonte distincte’), and its members must be capable of entering into international relation.

Though the BoP’s members are undeniably capable of entering into international relations by virtue of being official State representatives (Art. 2.1), significant doubts and problems remain as to its constituent instrument and autonomy. This casts doubt over whether the BoP is actually an IO under international law as the Charter claims it to be, or whether it is merely a form of institutionalised cooperation incapable of enjoying legal personality. The question of legal personality is of great significance because the BoP’s Charter sets out a damaging and regressive approach to peacebuilding. To what extent this approach is subject to international law and how responsibility for internationally wrongful acts would accrue depends centrally on whether or not the BoP enjoys international legal personality as an IO.

Constituent Instrument: The Charter or Resolution 2803?

The requirement of there being a constituent agreement is generally not a thorny issue if there exists an international agreement. The BoP’s Charter is undeniably an international agreement seeking to establish an IO, and the signing of a Charter is generally an uncontroversial manner in which to set one up. The point of contention here, however, is that Resolution 2803 – which first mentions the BoP at an international level – predates the Charter. The question, therefore, is whether it is indeed the Charter or UNSC Resolution 2803 which first created the BoP.

It is not unusual for a new IO to be established through a UN Resolution. The UN Industrial Development Organisation (UNIDO), and the UN Capital Development Fund (UNCDF), for example, were both created through UN resolutions. Therefore, it is entirely possible as a matter of doctrine that the BoP traces its constitution to Resolution 2803. There is some language in Resolution 2803 which may suggest that this is the case. The Resolution, for example, “welcomes the establishment” of the BoP (para. 2). Given that there was no instrument establishing the BoP before this Resolution was passed, it may well be the case that this provision constitutes de facto establishment through recognition. The BoP also derives many of its authorisations and scope of activities from the Resolution. For instance, Paragraph 4 “authorizes Member States participating in the BoP and the BoP to … enter into such arrangements as may be necessary to achieve [its] objectives.” This language is most strongly indicative of the Resolution being a constituent instrument because it suggests that everything coming after it, including the Charter, constitutes the ‘necessary arrangements’ under the Resolution’s authorisation. As such, it may be argued that the BoP’s existence and legal authority regresses beyond the Charter to the Resolution.

If this is the case, it would mean that the Charter is the BoP’s ‘internal law’ subordinated to the Resolution. Consequently, those provisions of the Charter which prescribe the BoP a role greater than what Resolution 2803 does would likely become invalid; this is because as Klein explain, “the authority to establish internal rules derives chiefly from the constituent instrument which generally empowers the organs it establishes” (para. 6). In other words, much of the Charter would be ultra vires.

This, however, is more an unresolved question than a definitive problem for the BoP’s personality as an IO. This is because there is an equally strong argument to suggest that the BoP derives its legal existence from the Charter. Two points support this. First, other UN Resolutions which have set up independent IOs (such as here, here, and here) have gone into far greater detail than Resolution 2803. In fact, these other resolutions read far closer to an independent Charter for the IO; they explicitly prescribe the IO’s functions, composition, voting procedures, institutional framework, and financial arrangements. Arguably, therefore, Resolution 2803 does not meet the level of specificity that generally accompanies the constitution of an IO through a UN resolution. Secondly, and perhaps more convincingly, Paragraph 4(B) of the Resolution expressly leaves the task of setting up an IO with international legal personality to the participating States, thereby strongly suggesting that the Resolution neither did nor intended to establish an IO in the first place.

As such, though there is some doctrinal confusion as to whether or not the Charter is indeed the BoP’s constituent instrument, this confusion is not insurmountable and, in any case, does not threaten the feasibility of the BoP’s personality as an IO. 

The Institutional Framework of the BoP and Volonte Distincte

The key existential challenge to the BoP’s legal personality arises, however, from its institutional framework which potentially renders it unable to express any autonomous institutional will. As noted earlier, one of the criteria necessary to acquire legal personality is whether the organisation possesses a volonte distincte i.e. the capacity to generate an autonomous will distinct from the collective will of its members. By granting Trump sweeping, permanent, and absolute powers across all organs of the BoP, the institutional framework established by the Charter raises doubts about whether the BoP would be capable of possessing the required volonte distincte.

Per the Charter, Trump’ term as chairperson is set to perpetuity subject only to voluntary resignation or incapacity (Art. 3.3). He is also given absolute powers over all operational and governance activities of the BoP. He has “the exclusive authority to create, modify, or dissolve subsidiary entities” (Art. 3.2(b)) and is granted “the final authority regarding the meaning, interpretation, and application” of the Charter (Art. 7). Trump’s authority as chairman also allows him a veto over all aspects of the BoP’s decision-making. Activities such as the setting of an agenda (Art. 3.2(c)), alldecisions of the BoP (Art. 3.2(e)), and all decisions of its Executive Board (Art. 4.1(e)) are made ‘subject’ to the Chairperson’s ‘approval’. These provisions require Trump to not cast a negative vote (para. 22) thereby granting him a veto over all aspects of the BoP’s operations. Trump also has the authority to adopt resolutions and directives on behalf of the BoP unilaterally and without any vote at all by way of his residual powers under the Charter (Art. 9). In other words, every aspect of the BoP’s work and all pathways through which it can express a will are controlled and directed singularly by one individual; the BoP does only what Trump allows and wants it to do. This is undoubtedly antithetical to the notion of a volonte distincte since there exists no institutional framework or capacity within the BoP by which it may express an independent and autonomous will.

Admittedly, however, volonte distincte is usually implied when the organisation’s constituent instrument expressly provides for its international legal personality, as the BoP’s Charter does (para 58). It may also be argued that decision-making by a majority vote both at the BoP and its Executive Board is sufficient to establish volonte distincte as is usually the case (Schmalenbach, [8]). Indeed, a mere veto power can never alone be enough to contraindicate a volonte distincte. Equally the existence of volonte distincte is not necessarily mutually exclusive to a single member ‘directing or controlling’ the organisation; in fact, the ILC’s Draft Articles on the Responsibility of IOs account for an an IO’s actions being directed or controlled by a State, and this is generally a question of allocating responsibility between an IO and its members (Art. 59).

Nonetheless, as Tassinis notes, ‘the permanent loss of any real or actual independence may undermine an organization’s claim to legal personality to begin with’ (p. 208). Similarly, ‘the existence of a particular decision-making procedure … cannot by itself settle whether an international organization enjoys actual independence from its members’ (Tassinis, p. 206). Therefore, the ultimate determination as to volonte distincte must come down to a holistic and systematic assessment of the BoP’s institutional framework. Capacity to form an autonomous and independent will is already doubtful when all decisions of an organisation are made subject to a single member’s approval. These doubts are exacerbated when all member States and members of the Executive Board are both appointed and terminable unilaterally at the Chairperson’s will without any specified criteria (Art. 2.1; Art. 2.3; Art. 4.1(a)). As the recent retraction of Canada’s invitation after Mark Carney’s speech in Davos makes clear (if there was ever any doubt), membership to the BoP depends entirely on alignment and accession to Trump’s worldview and political will. As such, even though the BoP’s expression of will is sometimes determined through a majority vote, this can be rendered irrelevant if all voting members are essentially agents or proxies of a single member such that the organisation is fundamentally and institutionally incapable of forming a truly independent will.

Trump’s stronghold over the BoP and its membership, therefore, reveals that the BoP is intended merely to institutionalise his and his allies’ collective will thereby contradicting the requirement of a volonte distincte. Since the requirements for legal personality are conjunctive, this would mean that the BoP is likely incapable of being an IO at all.

A Regressive Approach to Peacebuilding: Will the BoP’s Actions be Subject to International Law?

The BoP’s approach to peacebuilding is stated as being guided by ‘pragmatic judgement,’ ‘common-sense solutions,’ and ‘results-oriented partnership’ (Preamble). Guided by these principles, its mandate is to “promote stability, restore dependable and lawful governance, and secure enduring peace … in accordance with international law” (Art. 1).

Two points are particularly noteworthy about this mandate. First, it regresses significantly from established principles of peacebuilding. The UN has defined peacebuilding as “efforts to assist countries and regions in their transition from war to peace and to reduce a country’s risk of lapsing or relapsing into conflict by strengthening national capacities for conflict management, and laying the foundations for sustainable peace and development.” By adopting ‘pragmatism’ as the guiding principle and emphasising ‘partnership’ within the Board to the exclusion of the affected States, the Charter signals a regrettable retreat from an assistance-based model focussed on enabling indigenous ownership of the peace process to a heavily top-down management-based approach which dictates the peace process externally and to the exclusion of its beneficiaries (for a detailed criticism of such managerialism, see here).

Second, in addition to its peacebuilding mandate being regressive, if Trump’s approach to peacebuilding in Gaza and Ukraine are to be taken as indicative of how the BoP may exercise its mandate, it is likely that many of its actions would often contradict international law. Mukherjee and I explained earlier, for example, how the International Stabilization Force for Gaza potentially lacks any legal basis and may contradict rules of international law. We also explained elsewhere how the very existence and nature of the BoP’s oversight in Gaza may be unlawful. This being the case, it is unclear what effect (if any) the ‘in accordance with international law’ clause would have. Though it, prima facie, subjects the BoP’s work to general international law this is unlikely to have any practical effect given that the authority empowered to interpret the BoP’s vires is the Chairman itself.

It thus becomes important to consider whether international law can circumscribe the BoP’s activities, at least, as a matter of doctrine. The question of the BoP’s legal personality as an IO is pertinent here. If the BoP is indeed considered an IO, the scope of applicable ‘international law’ gets greatly diluted. While it is incontestable that ‘general international law’ applies to IOs (para.37), it is often argued that primary rules of customary international law are excluded from this category in the context of IOs since these rules exist only within “the community of States” (p. 997). This would exclude most of the relevant rules which the BoP’s actions may contradict, particularly because it has not (yet) entered into any treaties.

Furthermore, if the BoP is assumed to be an IO and even if customary law is considered applicable, the doctrine of implied powers would afford the BoP’s actions with a strong presumption of vires if that action “warrants the assertion that it was appropriate for the fulfilment of one of [its] stated purposes” (p. 168). Given that the stated purpose of the BoP is to implement ‘pragmatic’ and ‘common-sense’ solutions, it may well be argued that actions such as implementing the transfer of Ukrainian territory to Russia are ‘pragmatic’ per Trump’s interpretation of those terms.

As such, a clause subjecting the BoP’s actions to international law is essentially dead letter both in practical and doctrinal terms if the body is considered to enjoy legal personality as an IO.

Concluding Thoughts

Whether or not the BoP is indeed an IO under international law ultimately depends on the degree of autonomy from its individual members it can exercise. Though this remains to be seen, the institutional framework created by the Charter seems to indicate a fundamental inability to exercise any autonomy. As the above discussion also demonstrates, much turns on this question: it would be central to determining what the BoP may permissibly do.

The conferral of legal personality as an IO, however, would not be dangerous only in terms of the free reign it gives the BoP; it would also be a significant blow to holding its members individually accountable for their transgressions of international law. An IO also allows its members to ‘launder’ responsibility for their actions away from themselves by acting through the IO, thereby collectivising responsibility for internationally wrongful acts (p. 18). As such, by the operation of the rules on IO’s responsibility, the individual member States may often be entirely shielded if they act through an IO (Arts. 7 and 9). This is a particularly ominous threat given that the BoP’s membership includes States such as Israel and Russia which are in continuing breach of their obligations under international law in the very areas where the BoP would ostensibly operate.

Finally, acting through an IO also often legitimises conduct that might otherwise be perceived to be illegitimate – such as building skyscrapers in and ‘redeveloping’ Gaza under the American President’s private ownership. This is ostensibly Trump’s effort with the BoP: to advance his own interests and agendas whilst avoiding any legal responsibility by creating and acting through a body that resembles an IO.

Photo attribution: “Board of Peace Charter Announcement and Signing Ceremony January 2026” by the President of Azerbaijan is licensed under CC BY 4.0