 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