How to Treat a Treaty: Using International Law Effectively

by Julian on November 30, 2013

As Model United Nations delegates, we always try to make maximum use of the resources available to us. This often entails researching to the point that

we know our country’s gross production of baskets, scouting for that perfect seat at the start of committee, and employing the most emphatic language possible to point out that the other delegate is just wrong. Whether or not these tactics work for an individual delegate, an invaluable tool is often overlooked by everyone: international law.

Why should I use international law in committee?

kellog briand

Treaties can be evidence of friendly relations among states.

Being able to successfully integrate concepts of international legal norms will vastly legitimize your arguments and will therefore make you appear more prepared. Chairpersons will be more likely to take note of your speeches while delegates will feel more inclined to gravitate toward your working groups.

You can not only use international law to your advantage, but also to your opponent’s demise. If I had a nickel for every time I have seen even the best of delegates make comments or propose plans that run contrary to international law, I could fund the entire United Nations for a lifetime. If you familiarize yourself with elements of international jurisprudence, it will be possible to respectfully paint your opponents as ill-informed and you, in turn, as a “best delegate.”

Lastly, once you are well versed in the mechanisms of international law, a wide array of opportunities for you to create legally based solutions will present itself. Chairpersons will usually take very kindly to plans that include restructuring or make use of an existing body. Anyone can reinvent the wheel by establishing a new court or committee, but only the most astute have the ability to make full use of the resources already available to them.

Sources of International Law

Treaties and Conventions

First of all, it is important to recognize that there is no difference between a treaty and a convention. Together, they represent the most “concrete” form of international law that we have to work with. They cover a broad range of topics ranging from environmental and trade agreements to human rights and relations among states. When you research for a Model UN committee, in terms of treaties, you should always the following questions:

  • Are there any treaties governing the topic I am researching?
  • If so, am I bound by these treaties? Are my allies and enemies bound as well? Is it widely accepted?
  • What is the historical context of this treaty?

Once you have answered these questions, you should have a sense of what exactly you are dealing with.

Next, you should analyze the travaux préparatoires of the treaty. This is essentially the history of the document’s drafting. This sheds light on whether your or others’ interpretation of this treaty is correct. This may be difficult to research at times if you do not have access to academic journals, but the Yale Law School Lillian Goldman Law Library has an excellent online collection.

Before you begin reading the treaty, however, you should be familiar with some of the terminology used in many of these documents. The United Nations Children’s Fund provides a list of some of the most important terms—including ratification, signature, and accessionhere. The worst thing that you can do is claim your opponent is violating international law when in fact they aren’t!

Equipped with these tools, you should be ready to begin reading. Your first stop should always be the table of contents. Some treaties can be quite extensive—even hundreds of pages long! It is important to look for key words that pertain to exactly what you are looking for.

One invaluable component of a treaty will be its preambulatory articles. As delegates, we usually write these in haste when drafting our own working papers, so we tend to glance over them when reading actual treaties. They can provide excellent sources for further research and provide much-needed historical context.

Definitions run the world, and many times this is really what you will be looking for when scanning a treaty. In a Model UN committee, one comma might prevent nuclear war! Be careful to read these definitions, usually located at the beginning of the treaty, but also look for them in articles that are relevant to the topic at hand.

Customary International Law

CIL

There are instances where customary international law does not apply.

The concept of customary international law (CIL) is very complex but very rewarding if utilized effectively in committee. CIL is evaluated on the same level as treaties and conventions are, meaning it is equally important in terms of applicability. The existence of CIL is determined using the following formula:

State practice + opinio juris = CIL

State practice is the phenomenon of many (if not most) states abiding by a certain norm, or principle. It can be evidenced by verifiable state actions. This element of CIL is easier to understand and to demonstrate, usually because its presence is obvious.

Opinio juris is the belief of a state that a certain practice is legally binding across the international community. This can be evidenced by speeches made international or domestically by state officials or internal memoranda, among other forms of proof.

I like to think of this concept in the following way. I picture a square yard bordered by sidewalk with a sign that reads, “Keep off the grass.” People generally follow this rule until one day someone walks diagonally across. They may or may not get in trouble, but then someone else follows suit a few months later. This starts happening more and more, until finally a diagonal path is worn into the grass. After many years, the sign has faded away and almost everyone takes the diagonal route. Finally, the sidewalk border becomes overgrown with shrubbery. A binding custom is born.

Judicial Decisions

There are other sources of international law, but the last one that will be discussed here will be judicial decisions. Firstly, I want to distinguish the International Court of Justice (ICJ) from the International Criminal Court (ICC).

The ICJ is an organ of the United Nations. It consists of a panel of fifteen elected judges, representing all major regions of the world. The ICJ rules on two kinds of cases: advisory opinions and contentious cases.

Advisory opinions address complex matters of international law and are non-binding in nature. However, they carry heavy legal weight and can be designated as binding should the UN choose to do so for a particular matter. Actors that are deemed relevant by the ICJ will present their arguments, but there is no one victorious party.

Contentious cases, on the other hand, settle disputes between states that have consented to the ICJ’s jurisdiction. If this is the case, the ruling is binding. Consent is given in at least one of three ways: all state parties voluntarily submit to the ICJ’s jurisdiction on a case-by-case basis, the states have consented to the ICJ’s jurisdiction for certain matters through a dispute settlement clause in a particular treaty, or the states have issued an article 36(2) declaration under the Statute of the Court in which they agree to compulsory jurisdiction.

Both types of cases can be reviewed here.

Almost all states are parties to the ICJ statute.

The ICC is a completely different body that deals with distinct legal issues. The ICC is an international criminal tribunal that processes individuals for four specific crimes: genocide, crimes against humanity, war crimes, and crimes of aggression. States are only subject to the ICC’s jurisdiction if they have signed the Rome Statue, which also details the specifics of the crimes listed above.

Lastly, you should be aware of arbitration and institutional courts as methods of dispute settlement. The Permanent Court of Arbitration is one example of an arbitral tribunal that is in use today. Arbitration differs from litigation in that all parties consent to the proceedings and work together to determine who presides over the case and what law is applied. The document that lists these agreements is called the compromis.

Many international organizations and treaties establish their own court systems to act as enforcing entities. The International Tribunal for the Law of the Sea, for example, arose from the United Nations Convention on the Law of the Sea and handles cases relevant to the convention.

“I feel overwhelmed!”

Don’t. A basic knowledge of what is discussed in article will set you light-years apart from your peers. Keep references nearby so you can look up anything you may be unsure about. Feel confident that the Best Delegate team can help you with any Model UN related questions, as well. Feel free to contact me at julianpr@nullbestdelegate.com if you have any concerns!

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