Hoarding The Mandate: The Board of Peace and Its Subversion of the UN Security Order

[The authors are third year law students at the West Bengal National University of Juridical Sciences (WBNUJS), Kolkata.]

The UN Charter rests on a distinctive normative conception of sovereignty. Sovereignty is not abolished in matters of international peace and security; rather, it is collectively mediated through universality. Article 2(1) affirms the sovereign equality of states, grounding participation in peace and security governance in strictly juridical status. Sovereignty under the Charter is therefore not hierarchised, and certainly not something that requires a billion dollars to ascend an invented ladder of authority. The Board of Peace (‘the Board’) unsettles this foundational premise of the Charter by demanding financial contribution to attain permanent status within the Board, while placing such status at the continuing discretion of its chairman, one Donald J.Trump. In doing so, the Board substitutes the Charter’s conception of sovereign equality with a capacity-based hierarchy, emptying sovereignty of its shared meaning. The Board’s constitutional essence being based on distorting perhaps the most crucial principle of international law, when it comes to establishing reciprocity and good faith among nations. Compelled by this, the authors critique constitutionality of the Board through a 4-part argumentation. Establishing the violation of substantive sovereignty in international security law, the authors read down several provisions of the Board’s charter using (i) Ultra Vires Principle (ii) Responsibility to Protect (R2P) and (iii) Principle of Neutrality in International Humanitarian Assistance.

The Board’s Distortion Of The ‘Intended’ And ‘Practiced’ Security Sovereignty Under The UN Charter.

The Board fundamentally distorts the idea of “security sovereignty” that animated debates during the Charter’s formative period. Those debates did not envisage executive discretion exercised by a few powerful actors, but the collective delegation of sovereign authority to a universal institution acting under law. This understanding finds its clearest articulation in post-war German constitutional thought interpreting Article 24(2) of the Basic Law, a provision widely understood to mirror Article 24 of the UN Charter. German constitutional debates developed the doctrine of collective security sovereignty, according to which the Security Council, in its ideal form, would have derived its authority from a genuine surrender of state sovereignty, backed by a democratically drafted legal framework. On this reading, the Council was meant to function as a constitutionally constrained organ of collective security, not as a body exercising open-ended discretion.

The failure to implement this vision left the Security Council operating without a governing “basic law,” a concern famously captured by John Foster Dulles’ (former US Secretary of State) observation that the Council is “The Security Council is not a body that merely enforces agreed law. It is a law unto itself. “No principles of law are laid down to guide it; it can decide in accordance with what it thinks is expedient.” Over time, such expediency has allowed the political interests of the P5 to shape international security governance. The Board represents the latest manifestation of this trajectory. Article 39 of the UN Charter, which embodies the Security Council’s widest discretionary power, permits the Council to determine what constitutes a “threat to the peace” and to decide upon the measures required. This elasticity privileges political judgment over tightly defined legal standards and has historically enabled expediency to operate under the language of collective security. It is precisely this discretionary space within Article 39 that has enabled the Security Council to authorise the Board Peace, transforming an exceptional power of response into the foundation for a new institutional arrangement.

Even setting this structural problem aside, the Board raises a more serious constitutional concern. It is no longer merely an instrument through which the Security Council exercises its Article 39 powers. Rather than remaining a purpose-built body to oversee the Gaza ceasefire and reconstruction, as intended by the UN, the charter signed by Trump and his associates makes no reference to Gaza, nor to the fact that the Board’s mandate is geographically confined and expires at the end of 2027. Instead, the Board now describes itself as “an international organization that seeks to promote stability, restore dependable and lawful governance, and secure enduring peace in areas affected or threatened by conflict.” What emerges is not delegated Security Council authority, but the architecture of a capacity-based, invitation-only security Frankenstein, detached both from the Charter’s intended conception of collective security sovereignty and from whatever remains of that conception in contemporary international law.

Mandate Inflation And The Board’s Ultra Vires Claim To Autonomous Authority

As is known, the Board draws its mandate from UNSC Resolution 2803 which explicitly limits the spatial scope of board’s authority to Gaza and not beyond. However, such a reference is explicitly absent in the Board’s charter and it extends the mandate to ‘areas affected or threatened by conflict’. This overreach is not only beyond concerning but also violative of the ultra vires principle. Put simply, it effectively breaches the mandate of the UNSC by attempting to take actions construed far beyond its ascribed functions. In paragraph 168 of Certain Expenses of the United Nations, the ICJ held that even beyond a textual mandate, an act by an international organisation is presumed to not be ultra vires if it the actions are essential for the fulfilment of the attributed function.

To contextualise, there remain two major schools to determine the validity of an ultra vires act. The narrow approach as opined by the PCIJ in the Competence of the International Labour Organisation deduces implied powers from explicit powers. On the other hand, a broader approach as indicated by the ICJ in Reparation for Injury Suffered in the Service of United Nations, attempts to derive implied powers from the purposes and functions of the organisation.  Herein however, the Board abjectly circumvents the spatial scope of the resolution and even under the broader approach, such ‘implied powers’ can never be inherent and invoked to override an express limitation. Such manifest violation renders  any act taken in pursuance of such authority absolutely invalid. Even if one were to assume such implied powers exist, the attempt to institutionalise a parallel to the United Nations is invalid.  The Latin principle of ‘emo dat quod non habet’ translates to ‘one cannot delegate what it itself does not have.’ In arguendo, even if such powers are said to be inherent with the Board, the United Nations does not have the authority and lacks the competence to authorise a creation of an institution that is parallel and replicates its functions.

The Board’s Unauthorised Invocation Of Responsibility To Protect (‘R2P)

The Board employs phraseology which can be misunderstood to effectively crystallise the doctrine of responsibility to protect (‘R2P’). As has been done previously, and is apparent, the UN has time and again attempted to crystallise R2P through various UNSC and UNGA resolutions.  Pillar III of R2P effectively uses the term ‘collective action’ which mirrors the terminology adopted in the Board’s charter through a combined reading of its provisions. Article 1 intends to promote stability and undertake peace building mechanisms in areas ‘threatened by conflict,’ meaning that such actions will be ex ante in nature, mirroring the objectives of R2P. Chapter IX of the Charter authorises to adopt ‘resolutions or other directives’ while Article 3.2 also allows the chairman the authority to create any other subsidiary entity to ensure the fulfilment of the Board’s objectives. As has been argued previously,  charter cannot be considered to be a crystallisation of R2P. The authors in extension, argue that such is also buttressed  when such authority attempts to act beyond the powers granted by the UNSC. This is so given that a unilateral invocation of R2P is not  justified and must reflect a collective will of the international community. Such collective will however cannot be said to exist in the present context, given the rigid rules of membership. As such, the premise that the Board is a creature of UNSC does not equate to authorising the Board to act under a R2P mandate as it in fact, breaches key requisites for such invocation.

IV. Humanitarian Governance by the Board and the Collapse of IHL Neutrality

Lastly, the Board also intends to deliver humanitarian aid to such areas of conflict. It is however, argued that such intended function would run in violation of the established rules of International Humanitarian Law (‘IHL’). The established mechanism of IHL requires that the mission operate in accordance with the twin principles of humanity, neutrality and impartiality. The requirements of neutrality and impartiality posit  that the actors refrain from any act which endorses and shows support to a party to the conflict. Such support is not merely military but can arise from political and ideological support. Whereas, even the criteria of humanity mandates that the aid be divorced from any political or economic objectives. In Gaza Flotilla, such lack of neutrality was inferred from its political standing. In the present context, the Board is chaired by Donald Trump, the current president of the United States of America while the executive board, which tasked with various administrative functions, comprises of politically affiliated individuals most notably Marco Rubio, the U.S. Secretary of States and Steve Witkoff, the U.S. Special Envoy to the Middle East amongst others. Given US’s entrenched political, ideological and military objectives across the globe, it is evident that such attempted delivery would violate the customary rules of IHL. It, therefore purports any such ‘humanitarian mission’ by the Board as legally invalid as against the IHL rules. In effect, such violation, authorises a state in conflict to withhold and in fact, deny consent to such impending delivery of humanitarian assistance. As such, such exercise of power would remain legally erroneous and such parallel powers remain incoherent with the established architecture of IHL unlike that of the UNs.

The Board of Peace risks turning global security into a “pay-to-play” system, replacing shared law with the whims of the powerful. By ignoring its legal limits and discarding neutrality, it threatens to break the very foundation of the UN. Looking ahead, we must decide: will peace be a universal right protected by law, or a luxury commodity controlled by the few? Reclaiming the UN’s mandate is essential to prevent this “security Frankenstein” from destroying international order.

Photo Attribution: “Board of Peace Charter Announcement and Signing Ceremony January 2026” is by President.az is licensed under CC BY 4.0