Vol. 78, No. 12, December
What Every Lawyer Should Know About International Law
Even if lawyers don't deal directly
with international law, our clients do as they compete in a global
economy. The author provides a quick introduction to the topic of
international law for lawyers who traditionally practice domestic law
but who need the big picture fast.
by Jeffrey A. Brauch
We know the world has changed. Gone are the days when a lawyer can
know about domestic law only. If lawyers don't deal directly with
international law, our clients do as they compete in a global economy.
International treaties and customary international law don't just affect
United States behavior at the United Nations. They also affect the
development of U.S. domestic law.
We know this, but for many lawyers, it is a daunting task to begin to
learn international law. This article presents a very basic overview of
international law for traditional lawyers who practice domestic law. The
article is not comprehensive by any means, leaving out much; but it
provides a start.
Defining International Law
Traditionally, international law was viewed as the law that governs
relations between nations.1 This view was
based on the notion that only states have rights and obligations that
international law recognizes. In this view, individuals are not subject
to international law except as they are dependent on a sovereign
Our view of international law has changed. While international law
still primarily governs the relationship between states, it now also
governs the treatment of individuals and other entities. The Restatement
(Third) of Foreign Relations Law puts it this way:
"International law, as used in this Restatement, consists of rules
and principles of general application dealing with the conduct of states
and of international organizations and with their relations inter
se, as well as with some of their relations with persons, whether
natural or juridical."2
Today individuals and international organizations like the World
Trade Organization and the European Union are active participants in and
subjects of international law.
How International Law is Made
Jeffrey A. Brauch, Chicago 1988,
is Dean of the Regent University School of Law in Virginia Beach, Va. He
holds a Wisconsin law license and was an associate at Quarles &
Brady, Milwaukee, before teaching law.
It is generally accepted that there are four major sources of
international legal norms. The most authoritative statement of those
sources comes from the Statute of the International Court of Justice.
Those sources are:
- international conventions, whether general or particular,
establishing rules expressly recognized by the contesting states;
- international custom, as evidence of a general practice accepted as
- the general principles of law recognized by civilized nations;
- judicial decisions and the teachings of the most highly qualified
publicists of the various nations, as subsidiary means for the
determination of rules of law.3
A key principle with each of these sources is acceptance. There is
neither a world court with general global jurisdiction nor a world
legislature. Legal norms must (in some way) be accepted by sovereign
parties.4 The rest of the article briefly
introduces the first three sources relied on by the International Court
of Justice, which are the primary sources of international law (judicial
decisions and publicist teachings are subsidiary sources).
Basic Principles Regarding Treaties. For a document
to be considered a treaty, its name is not critical; its function is. A
document called a "treaty," "convention," "pact," "covenant,"
"protocol," or "agreement" is a treaty if it is an agreement between two
or more sovereigns that is formally signed, ratified, or adhered
The best domestic law analogy to the enforcement of treaties is not
constitutional law; it is contract law. Many core principles of contract
law are relevant. For instance, treaties are binding only on nations
that ratify them; they cannot bind nonparties.6 A state may terminate its obligations under a
treaty when the other party materially breaches the agreement.7
A nation may limit or modify its legal obligations under a treaty by
submitting reservations at the time of ratification. For example,
although the U.S. ratified the International Covenant on Civil and
Political Rights, it did so with a series of reservations. In one
reservation, the U.S. Senate declared that its approval of Article 20 of
the Convention (Article 20 contains limitations on certain forms of
speech) does not require legislation that would restrict free speech and
association rights protected under the First Amendment. Similarly, the
U.S. reserved the right to continue to apply capital punishment despite
Convention limitations of the practice.8
What is the effect of a nation submitting reservations? Again
contract law is helpful. For a bilateral treaty, a reservation acts as a
counteroffer. It is not effective unless the other side accepts.9 For a multilateral treaty, though, a reservation
is effective unless the treaty prohibits this reservation or
reservations in general, the reservation is contrary to the object and
purpose of the treaty, or another nation objects.10
There are thousands of treaties. Some of the most important are the
Charter of the United Nations, the International Covenant on Civil and
Political Rights, the North American Free Trade Agreement, and the
Charter of the European Union. There is even a treaty on how to
interpret treaties, the Vienna Convention on the Law of Treaties.
Lawyers' clients - especially those who sell products abroad - should
be aware of these treaties. Some clients already are. For instance,
human rights norms have begun to affect corporate behavior.
Multinational companies have begun to create "codes of conduct" as a
response to developments in human rights law.11
Status of Treaties Under U.S. Law. Treaties are the
law of the land and take precedence over state law. Article VI of the
U.S. Constitution states:
"This Constitution, and the Laws of the United States which shall be
made in Pursuance thereof; and all Treaties made, or which shall be
made, under the Authority of the United States, shall be the supreme Law
of the Land."12
Federal courts have jurisdiction to enforce treaty obligations.
Article III states:
"The Judicial Power shall extend to all Cases, in Law and Equity,
arising under this Constitution, the Laws of the United States, and
Treaties made, or which shall be made, under their Authority;
There is one important exception to the enforcement of treaties in
federal courts. Some treaties, including many human rights treaties, are
considered "non-self-executing." A non-self-executing treaty is one not
intended to become effective as domestic law without the enactment of
further enabling legislation.14 It can be
difficult, however, to determine which treaties are self-executing and
which are not. The Restatement (Third) of Foreign Relations Law declares
an international agreement of the U.S. non-self-executing if: 1) the
agreement makes clear that domestic implementing legislation is needed;
2) the Senate (when consenting to the treaty) requires implementing
legislation; or 3) the Constitution requires implementing
Examples of non-self-executing treaties include any treaties that
require budget outlays.16 Constitutionally,
Congress must authorize budget expenditures. Expenditures cannot
automatically be authorized by ratification of a treaty. Similarly, any
treaty committing the U.S. to declare war under certain conditions is
non-self-executing. Why? A treaty can't require the U.S. to
automatically be at war. Constitutionally, Congress must declare
The U.S. tends to be a cautious treaty signer. It generally takes
very seriously its international obligations under treaties and is
extremely careful before undertaking such obligations. This is
especially true in the area of international human rights. The U.S.
practice has been to ratify relatively few human rights treaties. For
example, the U.S. and Somalia are the only United Nations-member
countries not to have ratified the Convention on the Rights of the
Child.18 In addition, when ratifying, the
U.S. frequently includes many reservations and usually declares the
treaty to be non-self-executing.19
The second major source of international legal norms is customary
law. Under customary law, a nation is bound by certain legal norms even
if it has never signed a treaty containing those norms.
Basic Principles Regarding Custom. A custom is
formed by the "general and consistent practice of states followed by
them from a sense of legal obligation."20
For example, although there is no treaty on point, all nations are bound
by the following custom (a binding principle of international law): a
state may not enforce its domestic law within the boundaries of another
state without that state's consent.21 In
creating a custom, it is not enough for nations to consistently act in a
certain way. They must act that way from a sense of legal obligation (as
opposed, for example, to mere habit or courtesy).
The International Court of Justice considers the following factors in
determining whether there has been a general and consistent practice:
uniformity, consistency, and longevity.22
The first two factors are the most important. At times, a custom can be
formed quite quickly. For example, a 15-year period was deemed
sufficiently long for nations to adopt a custom of using a continental
shelf theory for claims to offshore oil and gas deposits.23 Other examples of legally binding customary
norms are that treaty obligations must be observed by ratifying
nations;24 a state may not detain an
individual indefinitely without charge or trial;25 and a state may not sanction human
A principle does not exist as a matter of customary law if there is
no agreement among states as to the scope and content of that
principle.27 For example, while the
Universal Declaration of Human Rights declares as a fundamental human
right the right to own and to not be arbitrarily deprived of property,
there is widespread disagreement about the exact contours of that right.
Protection of property rights is therefore not viewed as a principle of
A very important principle of customary law is that a norm is not
binding on a nation that consistently declares its dissent from the norm
during the norm's development.29 For
example, in the first half of the 20th century, Norway and the United
Kingdom battled over fishing rights off the Norwegian coast. Norway's
claim to exclusive fishing rights to certain ocean areas was based on
Norway's use of a unique cartography system different than that followed
by the rest of the world. Norway's consistent dissent from traditional
customary boundary rules and other nations' failure to adequately object
to Norway's interpretation meant that traditional boundary rules were
not binding on Norway as a matter of customary law.30
There is one exception to the principle that a nation can avoid being
bound by customary law by dissenting during development of the custom.
Some principles of customary law are viewed as so fundamental that no
dissent is permitted. These principles are known as jus cogens.31 The principles apply to all nations and cannot
be abrogated by treaty. They are considered peremptory norms.
Examples of jus cogens norms are found in the following provisions of
the Restatement (Third) of the Foreign Relations Law:
"A state violates international law if, as a matter of state policy,
it practices, encourages, or condones
"(b) slavery or slave trade,
"(c) the murder or causing the disappearance of individuals,
"(d) torture or other cruel, inhuman, or degrading treatment or
"(e) prolonged arbitrary detention,
"(f) systematic racial discrimination ...."32
Status of Custom Under U.S. Law. Custom, like a
treaty, is part of the "law of the United States" under the
Constitution's Supremacy Clause.33 Custom
is self-executing. No statutory authorization is required to make custom
effective. The only question is whether custom creates private rights of
recovery or merely obligations between governments.
One of the most famous examples of U.S. courts applying customary law
was the Paquete Habana case in which the U.S. Supreme Court
held that the U.S. violated international customary law when it captured
a fishing vessel during a blockade of Cuba in the Spanish-American
War.34 The Court stated:
"International law is part of our law, and must be ascertained and
administered by the courts of justice of appropriate jurisdiction, as
often as questions of right depending upon it are duly presented for
their determination. For this purpose, where there is no treaty, and no
controlling executive or legislative act or judicial decision, resort
must be had to the customs and usages of civilized nations."35
General Principles of Law
Treaties and custom are by far the most common sources of
international law. But there are times when an international court, or a
court applying international law, does not have a treaty or custom to
which it may look. The court then may look to what are known as "general
principles of law."
General principles serve essentially as gap-fillers where there are
no treaties or customs to look to.36 A
court applying general principles seeks to find a practice that is
followed by "major legal systems."37 An
example of a general principle of law is that relating to the exhaustion
of domestic remedies. Normally, international treaties require that,
before bringing a claim in an international tribunal, the claimant must
exhaust the remedies provided by his or her home nation. In
Velasquez Rodriguez, the Inter-American Court of Human Rights
used generally applicable principles of law to find an exception to the
normal exhaustion rule: a claimant need only exhaust domestic remedies
if those remedies are adequate and effective.38 Other international courts have applied
doctrines of res judicata, estoppel, statutes of limitation, and rules
of evidence as general principles of law.39
There is, of course, much more to international law. For example,
there are many principles and rules for resolving disputes before
international courts that this short article has not touched. There are
tricky issues at the intersection of treaty and custom (for example,
could the U.S. become bound to provisions of a treaty it explicitly
chose not to ratify when those provisions become viewed as customary
law?) that are beyond the scope of this piece. This article only
provides a quick introduction to the topic of international law for
lawyers who need the big picture. It is a picture that now includes all
1Thomas Buergenthal & Sean A.
Murphy, Public International Law 1 (3d ed. 2002).
2Restatement (Third) of Foreign
Relations Law § 101.
3Statute of the International Court
of Justice, Oct. 24, 1945, art. 38, 59 Stat. 1055.
4Louis Henkin, Gerald L. Neuman,
Diane F. Orentlicher & David W. Leebron, Human Rights 297
5Black's Law Dictionary 1540 (8th
6Henkin, supra note 4, at
7David J. Bederman,
International Law Frameworks 38 (2001).
8U.S. Reservations, Understandings,
and Declarations, International Covenant on Civil and Political Rights,
138 Cong. Rec. 8068 (1992).
9Bederman, supra note 7,
(Third) of Foreign Relations Law § 313.
11Henkin, supra note 4,
12U.S. Const. art. VI.
13Id. at art. III
14Bederman, supra note
7, at 163.
15Restatement (Third) of Foreign
Relations Law § 111.
16Bederman, supra note
7, at 163.
18John Quigley, U.S.
Ratification of the Convention on the Rights of the Child, 22 St.
Louis U. Pub. L. Rev. 401, 401 (2003).
note 1, at 368-69.
20Restatement (Third) of Foreign
Relations Law § 102.
21Phillip R. Trimble,
International Law: United States Foreign Relations Law 182
22Bederman, supra note
7, at 17.
23Id. at 18.
24Henkin, supra note 4,
25Id. at 183.
27Restatement (Third) of Foreign
Relations Law § 702 comment a.
28Id. at comment k.
note 1, at 23.
30Norway v. UK, 1951
I.C.J. 116 (1951) (upholding Norway's claims to exclusive fishing
rights; Norway not bound to customary law dealing with fishing
boundaries because it effectively dissented during creation of the
31Henkin, supra note 4,
32Restatement (Third) of Foreign
Relations Law § 702 comment n.
33Id. at § 111.
34The Paquette Habana,
175 U.S. 677 (1900).
35Id. at 700.
36Henkin, supra note 4,
37Restatement (Third) of Foreign
Relations Law § 201(4).
38Velasquez Rodriguez, 4
Inter-Am. Ct. H.R. (ser C) (1988) (claimant need not pursue habeas
corpus remedy in Honduras in forced disappearance case in which pursuit
would be fruitless).
39Henkin, supra note 4,