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 t