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
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.” 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. 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].” Jensen deemed other waning laws to include laws
overseeing neutrality, declarations of war, the Law of Armed Conflict (LOAC)
and others. 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.
Jensen argued that state sovereignty, however, is becoming
outdated under the weight of emerging transnational organizations. 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. 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. 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. 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.
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.
 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).
 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
 See Jensen, supra note 1.
 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).
 U.N. Charter art. 51.
(Third) of Foreign Relations Law § 102 (1987).
on State Sovereignty and Human Rights, People’s
Daily, Nov. 10, 1999, http://english.peopledaily.com.cn/english/199911/10/print19991110N161.html,
(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, http://www.channelnewsasia.com/news/asiapacific/kerry-warns-china-against/998192.html (no longer available - discussing a dispute around China’s claim of sovereignty to parts of the South
Posted by William L. Thore (Logan) on Tue. February 11, 2014 8:00 AM
Customary International Law, Cyberwarfare, Symposium