Wisconsin Lawyer
Vol. 78, No. 12, December 2005

What Every Lawyer Should Know About International Law

Sidebar:

• Glossary of Key Terms

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 state.

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

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 law;
• the general principles of law recognized by civilized nations; and
• 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).

Treaties (Conventions)

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 to.⁵

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; ..."¹³

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 legislation.¹⁵

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 war.¹⁷

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

Custom

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 torture.²⁶

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 customary law.²⁸

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

"(a) genocide,

"(b) slavery or slave trade,

"(c) the murder or causing the disappearance of individuals,

"(d) torture or other cruel, inhuman, or degrading treatment or punishment,

"(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

Conclusion

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 of us.

Endnotes

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 (1999).

⁵Black's Law Dictionary 1540 (8th ed. 2004).

⁶Henkin, supra note 4, at 297.

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, at 31.

¹⁰See Restatement (Third) of Foreign Relations Law § 313.

¹¹Henkin, supra note 4, at 318.

¹²U.S. Const. art. VI.

¹³Id. at art. III §2.

¹⁴Bederman, supra note 7, at 163.

¹⁵Restatement (Third) of Foreign Relations Law § 111.

¹⁶Bederman, supra note 7, at 163.

¹⁷Id.

¹⁸John Quigley, U.S. Ratification of the Convention on the Rights of the Child, 22 St. Louis U. Pub. L. Rev. 401, 401 (2003).

¹⁹Buergenthal, supra note 1, at 368-69.

²⁰Restatement (Third) of Foreign Relations Law § 102.

²¹Phillip R. Trimble, International Law: United States Foreign Relations Law 182 (2002).

²²Bederman, supra note 7, at 17.

²³Id. at 18.

²⁴Henkin, supra note 4, at 297.

²⁵Id. at 183.

²⁶Id.

²⁷Restatement (Third) of Foreign Relations Law § 702 comment a.

²⁸Id. at comment k.

²⁹Buergenthal, supra 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 custom).

³¹Henkin, supra note 4, at 301.

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, at 302.

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, at 302.

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