Many students participating in a Model United Nations (“MUN”) might ask themselves if a basic notion of international law is necessary for the purposes of successfully conducting their participation in the academic simulation. The answer is a resounding YES. The object of this post is to briefly describe the main ways by which States are bound under international law and provide a brief comment about “the law of the United Nations (“UN”)”.
As soon as you start conducting your research for the MUN, you will notice that the world needs international law, since no State acting alone can truly achieve its aims. International co-operation is necessary and international law is precisely the framework within which international co-operation takes place.
In other words, just like at school (or at home) you have a minimum set of basic rules to comply with for the purposes of keeping order and good relations with your teachers, parents and even your peers, States need a basic framework to carry out their relations. That framework is commonly referred to as international law.
The UN, as one of the most important international organizations in the world, functions within the framework of international law. In that regard, it is worth noting that one of its aims is to develop friendly relations between nations, which unavoidably has to be done in accordance with international law. In a few words, this means that the importance of international law is capital in every single committee of a MUN.
For example, any reform undertaken after the Arab Spring has to be done within the limits imposed by international law to States, duly respecting and upholding human rights, which are guaranteed in a different set of instruments which are part of international law, such as the Universal Declaration of Human Rights. The same applies while discussing other common topics like LGBT rights, human trafficking, refugee repatriation and online piracy.
Consequently, while conducting your research, the first tool you need to have is the power of being able to indicate if a particular agreement made by a State, is formally binding, which means if it is legally obligatory. This is important since there are many agreements and even declarations issued nowadays which simply can be modified or abandoned at will by States without any consequence.
In that sense, it is important that you know that the main ways by which States are bound under international law are the following: (i) international conventions (most commonly known as treaties); (ii) international custom; and (iii) the general principles of international law.
(i) Treaties are the most obvious and easy to explain source of international law. You will find them referred in many ways: international agreements, conventions, exchange of notes, memorandums of understanding, covenants, charters, or any other suitable name. In a few words, it can be said that treaties are to States what contracts are to humans. For instance, if you want to buy/sell a car, you sign a contract in order to document your obligations (which in such case will be to pay the amount due if you are the buyer or to surrender the car and its keys if you are the seller). Likewise, whenever they agree on something important, States sign a treaty in order to leave clear which are their obligations.
In principle, an according to international law, the only government officials who have the power of signing treaties are the President (or Prime Minister) and the Minister of Foreign Relations, although this depends on the law of each country. Also, the President or the Minister of Foreign Relations may grant a special authorization to some officials or ambassadors in other that they sign agreements before international organizations such as the UN, the Organization of American States or the African Union.
Another point that is worth highlighting is that the mere signature of a treaty by a State does not create an obligation to comply with its provisions. What really binds a State to the provisions of a treaty is its ratification, which in many States has to be done in a joint process with the participation of the legislative and executive branches of government.
Finally, is important to mention reservation of treaties. In principle, every State has the autonomous choice of accepting a treaty. However, States are permitted to modify a treaty in so far as it applies to themselves, accepting some but not all of its provisions. Such modification would be achieved by ratifying the treaty with a reservation, which is a statement by the State that excludes the binding character of certain provisions in their application to that State. Nevertheless, it is important to take into account that such reservations have a limit: they can be made as long as they are compatible with the object and purpose of the treaty.
(ii) International custom is a source of international law a little harder to explain. The purpose of all rules of law is to introduce an element of predictability into the behavior of people (and in the case of international law, to the behavior of States). In that sense, it is expected that States act in conformity with established practices.
For example, if you pray every day before you eat, it can be said that a custom has arisen and therefore your parents expect you to do that. Thus, the day you fail to pray, very probably your parents will complain about it, since you have that practice. International custom works the same way in relation to States.
However, for a rule of international custom to exist, two elements must be met: (1) a general practice by a State; and (2) the acceptance of such practice as legally binding (obligatory). In any case, it must be said that those States whose interests are particularly affected by a custom should participate, meaning that a rule concerning, for example, the use of outer space, cannot arise without the participation of States that are active in the exploration of the space.
(iii) General Principles of International Law are the most fundamental rules which apply to States and are established in the Declaration on Principles of International Law Concerning Friendly Relations an Co-Operation Among States in Accordance with the Charter of the United Nations (most commonly known as the Friendly Relations declaration), adopted by the UN General Assembly in 1970 as Resolution 2625. The resolution sets out the following seven basic principles, which you should ensure are not violated in the resolution that you will draft:
1. The principle that States shall refrain in their international relations from the threat or use of force against the territorial integrity of political independence of any State.2. The principle that States shall settle their international disputes by peaceful means.3. The duty not to intervene in matters within the domestic jurisdiction of any State.4. The duty of States to co-operate with one another in accordance with the UN Charter.5. The principle of equal rights and self-determination of peoples.6. The principle of sovereign equality of States.7. The principle that States shall fulfill in good faith the obligations assumed by them in accordance with the Charter, so as to secure their more effective application within the international community.
To conclude, it is important to make a brief reference to some legal aspects regarding the functioning of the UN. As you may already know, the two main organs which take decisions in the UN are the Security Council and the General Assembly.
The Security Council can issue resolutions based on the powers vested by Chapters VI, VII and VIII of the UN Charter, which is the fundamental set of rules applying to the organization. However, only the resolutions issued under Chapter VII, which refer to the maintenance of international peace and security, are binding on all the Member States of the UN. That’s obviously if the resolution is not vetoed by one of the five permanent members of the Council: China, France, Great Britain, Russia and the United States.
For its part, the General Assembly cannot issue binding resolutions. However, considering that, unlike the Security Council, it counts with the representation of all the member States of the UN, its resolutions, when adopted without a vote, can signal the state practice that is required to create an international custom.