A Brief Introduction to International Law for high-school students (especially those participating in Models United Nations)

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.

The Case for the Compulsory Jurisdiction of the ICJ

Why do States comply with international law? In contrast with national law, in international law there is no State more sovereign than the other, so there is not a recognized superior governmental authority. Furthermore, there is no international legislature, which is why many have said that international law lacks the legitimacy which endorsement by a democratic legislature would give.

 

As the year 2010 comes to its last months, it is appropriate to scrutinize where is the international community in regards to the fulfillment of its obligations under international law, and more specifically, what can be done to preserve the rule of law across the globe. 

There is no doubt that since international law involves a different and sometimes unrecognizable body of law, many States still do not give too much weight to the performance of its international obligations. However, for their development, States must begin to realize that international law rests on similar principles and pursues similar ends than national law; which is no other than the observance of the rule of law.

 

Accordingly, in their Millennium Declaration the member states of the United Nations resolved to “strengthen respect for the rule of law in international as in national affairs and, in particular, to ensure compliance by Member States with the decisions of the International Court of Justice, in compliance with the Charter of the United Nations, in cases to which they are parties”. 

Therefore, it is not precisely a new idea that a true development of the rule of law in the international sphere would entail a greater acceptance of the compulsory jurisdiction of the International Court of Justice (ICJ). Nowadays, while 65 of the 192 member states of the United Nations have chosen to accept the compulsory jurisdiction of the ICJ, a majority do not, and it is a lamentable fact that, of the five permanent members of the Security Council, only one, the United Kingdom, does so, Russia and China never having done so and France and the United States having withdrawn earlier acceptances. 

The justification of the dissimilar regime in relation to different Member States of the United Nations is simple. The ICJ has jurisdiction in contentious cases between states, on the basis of the consent of the parties. This principle, reflected in Article 36 of the Statute of the Court, rests on international practice in the settlement of disputes and is a corollary of the sovereign equality of states. For its part, the compulsory jurisdiction of the ICJ is enshrined in Article 36(2) of the Statute, which establishes: 

2. The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning: 

a. - the interpretation of a treaty; 

b. - any question of international law; 

c. – the existence of any fact which, if established, would constitute a breach of an international obligation; 

d. - the nature or extent of the reparation to be made for the breach of an international obligation. 

The recognition of the compulsory jurisdiction of the ICJ by all the member states of the United Nations is undoubtedly, a move which must be taken if the rule of law is to become truly successful in international law. However, former President of the ICJ, Dame Rosalyn Higgins has said that the suggestion that the rule of law requires, in this day and age, a routine and obligatory recourse to the Court in matters connected to the UN Charter and related issues is still a step too far. Nevertheless, she also recognized that the absence of a compulsory resort to the Court falls short of a recognizable rule of law model. 

International law is not imposed on states by external legislature, and a powerful reason of why states do sometimes comply with international law is that they make rules to suit themselves. However, the most potent of all reasons for compliance by states with international law is the sheer necessity of doing so. The point was well made by Douglas Hurd in 1997: 

Nation states are incompetent. Not one of them, not even the United States as the single remaining super-power, can adequately provide for the needs that its citizens now articulate. The extent of that incompetence has become sharply clearer during this century. The inadequacy of national governments to provide security, prosperity or a decent environment has brought into being a huge array of international rules, conferences and institutions; the only answer to the puzzle of the immortal but incompetent nation state is effective cooperation between those states for all the purposes that lie beyond the reach of any one of them. 

Therefore, having in mind that the main purpose of the United Nations is to maintain international peace and security, there is no better way to elucidate the disagreements between the nations than to resort to an impartial institution like the International Court of Justice. The principle of justice must be uphold by the international community, and the compulsory jurisdiction of the Court will lead to the peaceful adjustment and settlement of international disputes or situations which might lead to a breach of peace. There is no wisdom other than to seek injustice and disparity, if the different Member States cannot accept than an impartial body will only apply the law that they previously accepted to comply with. The time has come for States to understand that without true will of complying with their obligations and seeking justice, there is no possible future.