The Legal Framework of the SCO: Between Intergovernmental Cooperation and Supranational Ambiguity

Abstract

The Shanghai Cooperation Organization (SCO), an organization founded in the year 2001, has taken up a central regional body in Eurasia, which is composed of states that have different legal backgrounds and political systems, as well as geopolitical interests. Although it is gaining increasing power in terms of regional security, economic partnership and political engagement, the legal status of SCO is unclear. This paper examines the legal basis of the SCO to find out whether it is an old-fashioned intergovernmental body or it is supernationalist like organizations like the EU.
Although the SCO Charter has codified the mutual respect of sovereignty, non-involvement, and the consensus-based decision-making concept, it offers little insight over the binding and the modes of implementation of resolutions. The lack of powerful hierarchy of law, judicial mechanism of resolution of disputes, or legislative body, which will have ultimate authority implies an intergovernmental nature. Nevertheless, events in the recent past; i.e., institutionalization of the Regional Anti-Terrorist Structure (RATS), the growing popularity of multilateral treaties among the member states, and initiatives aimed at unification of economic and legal standards demonstrate the gradual tendency towards regulated legal decoupling. The paper examines these trends considering the international organizational law having analytical references to the legal frameworks of the European Union, the Association of Southeast Asian Nations (ASEAN), and the Eurasian Economic Union (EAEU).
Through researching of the primary documents used such as the SCO Charter, protocols, declarations, and institutional practices and some scholarly comments, the study reveals a hybrid nature of the legal identity within the SCO. It claims that even though SCO preserves the appearance of the intergovernmental institution, there are some signs of functional integration, especially in the fields of security and economics, which suggest that it is moving towards regional legal convergence, but with no formal supranational mandate. This transitional legal existence makes it difficult to implement joint commitments and casts doubt on the ability of SCO to resolve internal conflicts and exercise human rights standards and arbitration of conflicting legal signing of members to the larger international law.
Finally, in the paper, the legal ambiguity of the SCO has been argued to be more of a strategic decision rather than a structural imperative, which enables its members to collaborate in mutual cooperation without breaking sovereignty. This indeterminacy, on the one hand, is necessary to retain political freedom, on the other hand, creates immense legal problems of rule-making, uniformity, and responsibility. Whether and how the SCO will be able to manage this tension between intergovernmentalism and supranational aspiration as its membership and agenda grows will come to be central to its legitimacy and effectiveness within the international legal order.