ropean 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; an