Symposium Review: Sovereign Assumptions

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The North Carolina Journal of International Law and Commercial Regulation (ILJ) at the University of North Carolina School of Law held their annual symposium this past week, focusing on “Emerging Issues in the Law of Armed Conflict and International Security.” The symposium allowed ILJ to draw from the state’s strong military ties and the state’s wide network of national security legal professionals.

Scholars from across the nation also contributed to the agenda for ILJ’s symposium. Professor Eric Talbot Jensen began the morning with his presentation entitled “The Future of the Law of Armed Conflict.”[1] Jensen, of Brigham Young University School of Law and of Tallinn Manual notoriety, gave an early disclaimer regarding the difficulty of predicting the future, much less predicting the law that the future needs.[2] Jensen continued to lay out a framework for how to best predict the laws needed for the future of armed conflict. Among Jensen’s thoughtful predictions were several assumptions, which Jensen himself readily acknowledged and welcomed feedback concerning his assumptions’ veracity.

One of Jensen’s major assumptions proposed that laws relying on the foundation of state sovereignty are “Waning Law[s].”[3] Jensen deemed other waning laws to include laws overseeing neutrality, declarations of war, the Law of Armed Conflict (LOAC) and others.[4] Jensen considers these laws and ideas to be waning because, as he posited, the key premise behind each of these legal mediums is the bifurcation of state sovereignty.[5]

Jensen argued that state sovereignty, however, is becoming outdated under the weight of emerging transnational organizations.[6] Jensen’s argument suggests that while international law serves as the thoroughfare that connects pieces of the international community together, international law, as we know it, must adapt or be left behind. Thus, like an abandoned railroad track that wanes due to the airplane or the interstate, if international law fails to adapt to modern times, it will be rendered irrelevant.

The principle of state sovereignty has been and remains fundamental to any state’s foreign relations.[7] Sovereignty itself is the premise behind much of the United Nations, including the oft-quoted Article 51, which upholds Members of the United Nations’ right to self-defense.[8] Indeed, customary international law, the other major source of international law alongside treaties, derives its authority from the practice of states upholding their opinio juris sive necessitatis, or thosepractices that states view as their legal obligation to enforce.[9] Lastly, in addition to these historical declarations founded upon state sovereignty, one may also look to how future powers revere or consider state sovereignty. Accordingly, there is no dispute that state sovereignty is a pillar of China’s foreign policy and China’s expectations for the future.[10]

None of this, by any means, comes as a surprise to Jensen or to other scholars debating the future of the law of warfare. Even so, policymakers should still take pause before buying the assumption that state sovereignty is significantly degrading. A reading of the headlines might suggest that transnational groups (that is, non-sovereign state entities) are emerging with unprecedented vigor, including terrorist organizations and others. Nonetheless, the truth remains that sovereign states continue to thrive in and control the international domain. International law connects sovereign states to one another. While the railroad of yesterday’s international law may seem outdated, the destinations, regardless of the mode of transit, have largely remained the same: sovereign states.

[1] Eric Talbot Jensen, The Future of the Law of Armed Conflict at The North Carolina Journal of International Law and Commercial Regulation’s Symposium: Navigating the Fog of War: Emerging Issues in the Law of Armed Conflict and International Security (Jan. 31, 2014).

[2] Id. See also The International Group of Experts, Tallinn Manual on the International Law Applicable to Cyber Warfare, at x (2013) (listing Professor Eric Talbot Jensen as one of one of two “Legal Group Facilitators”).

[3] See Jensen, supra note 1.

[4] Id.

[5] Id.

[6] Id.

[7] See Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Judgment, 1986 I.C.J. 14, para. 202 (June 27) (quoting ICJ Reports 1949, p. 35).

[8] U.N. Charter art. 51.

[9] Restatement (Third) of Foreign Relations Law § 102 (1987).

[10] SeeChina on State Sovereignty and Human Rights, People’s Daily, Nov. 10, 1999,, (highlighting in the state owned newspaper, Shen Guofang’s speech to the UN which aligned state sovereignty with “fundamental human rights, such as the right to life and the right to existence”). See, e.g., Kerry Warns China Against New Air Defence Zone, Channel NewsAsia, Feb. 14, 2014, (no longer available - discussing a dispute around China’s claim of sovereignty to parts of the South China Sea).

Posted by William L. Thore (Logan) on Tue. February 11, 2014 8:00 AM
Categories: Customary International Law, Cyberwarfare, Symposium

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