These principles are central to the making both of trade and of human rights agreements, as well as to the development and evolution of trade and human rights norms, and thus serve as a prerequisite for the reader unfamiliar with, or in need of a refresher lesson in, the basic rules of understanding international law.
1.2 International Law and International Law-Making: General Concepts
In this first chapter, we aim to introduce international law and international law-making. This information is important because both human rights and trade treaties are international agreements that must be concluded pursuant to, as well as comport with, established international norms. We do not anticipate that readers will need to develop an expertise in international law to engage our materials, but we find this basic introduction advisable in order to provide a foundation for all readers, especially those not versed in international law. This is a straightforward and basic introduction; readers with a background or training in the international field may well opt to skip this opening chapter and start with chapter 2.
History traces the development of rules governing relations between or among different peoples to the end of the Roman Empire when the independent and separate states that emerged needed to develop rules for interaction. The system that emerged was largely founded on the Roman system. In fact, the Roman Empire developed a set of rules—the jus gentium—to govern the relations between Roman and non-Roman citizens, in contrast to the jus civile, which applied exclusively among Roman citizens. The jus gentium system incorporated principles of equity in natural law that contemporary scholars analogize to the source of international law called “general principles of law recognized by civilized nations” contained in Article 38(1)(c) of the Statute of the International Court of Justice (ICJ).1 Thus, one can trace the roots of international law to the need that arose when the formerly unified Roman Empire splintered into diverse nation-states that had to interact on a basis of sovereign equality and mutual respect. Thereafter, increased trade, improvements in navigation, and the discovery of new lands accelerated the development of the new law of nations.2
The Thirty Years War (1618-48) in central Europe is a significant event in the history of international law as it signified the end of one imperial reign over all of Europe. Additionally, it marked the emergence of independent nation-states as the primary actors in the global setting. Such advent of independent sovereigns was key to the evolution of international legal principles as it exposed the need to create norms to govern interactions between and among equals.3
In The Law of Nations, Brierly defined international law as “the body of rules and principles of action which are binding upon civilized states in their relations with one another.”4 This definition reflected the early view that international law applies exclusively to states. The American Law Institute’s Restatement of the Law Third, Foreign Relations Law of the United States defines international law as “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.”5 This definition reveals that international law no longer is the exclusive province of states and international organizations, but also deals with their relationships with individuals and corporations.
Article 92 of the United Nations Charter, itself a treaty ratified by Member states, establishes the ICJ as the principal judicial organ of the United Nations. The provisions of the Statute of the ICJ, a treaty to which all members of the UN are parties, set out the principles that constitute the ICJ and pursuant to which it functions.
Article 38 of the Statute sets out the four sources of international law:
a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations; [and]
d. … 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.
Treaties and custom are deemed to be primary sources of law. General principles of law and judicial decisions and treatises are secondary sources.
The Restatement also identifies the sources of international law: custom, international agreement, “general principles common to the major legal systems of the world.”6 While treaties and custom are primary sources, general principles are supplementary rules.
Customary law comprises the “general and consistent” practice of states followed from a sense of legal obligation. Such practice may include diplomatic acts, official policy statements, and other governmental acts. Until recently, international law was mostly customary law, with agreements being limited to particular arrangements between states, but rarely used for general law-making. Although customary law evolves from the practice of states, for such practice to become a rule of law states must abide by the conduct out of a sense of legal obligation —opinion juris sive necessitatis. A practice that states follow but have no sense of obligation to do so does not constitute a customary norm.
The practice of states can be found in both what states say and what they do (commission) or fail to do (omission) under circumstances in which failure to act may indicate acceptance of the acts of another state that have an impact on another state’s legal rights. In addition, for state practice to become customary law, the state practice must be general and consistent over time, with no major alterations or deviations. Significantly, although the general, consistent practice of states results in a binding customary norm, such principles may not be binding on states that are “persistent objectors” (i.e., states that during the development of the norm object to it).7
Two observations are appropriate regarding custom and persistent-objector status. One, a state cannot be insulated, as a persistent objector, from being bound by a peremptory norm (jus cogens) as such norms hold a superior status and permit no derogation.8 Significant for this project is that not all customary human rights norms are jus cogens—the prohibitions against genocide; slavery and the slave trade; causing disappearances of persons; torture and cruel, inhuman, and degrading treatment; prolonged arbitrary detention; and systematic racial discrimination constitute peremptory norms.9 Two, a new state coming into the international legal world will be bound by existing custom, without the opportunity to become a persistent objector. That status is only available to states in existence at the time that the norm is being created. This reality has subjected customary international norms to criticism by newly emerging states that are bound by existing rules although they had no part in their development and are given no opportunity to opt out of their application. In Article I, § 8, the U.S. Constitution refers to the “law of nations,” and U.S. Supreme Court case law has made clear that customary law is part of U.S. law.10
Treaties, the first listed source in Article 38 of the Statute of the ICJ, are very significant in the international realm and are, in modern times, the most frequently used tool for international law-making. Whereas custom is grounded in the practice of states, treaties are rooted in the consent of states. It is important to observe that the requisite technicalities for a document to be labeled a treaty are different in the international realm and under U.S. constitutional law, although one instrument may satisfy the requirements of both. Thus, what is properly called a treaty in international law may or may not qualify as a treaty under the U.S. domestic system.
In the international realm, the Vienna Convention on the Law of Treaties is the principal source of the law of treaties. At Article 2(1)(a), it defines a “treaty” as “an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument
