efore 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 