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Global Concepts

International Law Primer

1.1 Overview

This chapter provides an overview of the sources of international law and the practice of international rule formation. 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 or in two or more related instruments and whatever its particular designation.” Article II, § 2, of the U.S. Constitution provides that “the President … shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.” Thus, under the Constitution, an international agreement, concluded by the United States with another nation, in written form, and governed by international law—factors sufficient to make the instrument a treaty pursuant to the Vienna Convention requirements—is not a “treaty” in the domestic sense unless two-thirds of the Senate gives its advice and consent to the document. We will further address treaties and U.S. law later in the chapter, but first we need further to develop the concept of treaties in the international realm.

In the international sphere, in order to decide what constitutes an “international agreement,” one must first analyze the text. Ultimately, whether an instrument is a treaty depends on the intent of the parties. Thus, when there is doubt as to whether an instrument is a treaty, one analyzes the negotiating history, the formalities observed, and the expectations induced. The more formal the process, and the more formal the law-making authority of the government involved, the stronger the case for finding an “agreement.”

Treaties share critical characteristics as parliamentary and contractual instruments. For example, in terms of “who” can enter into a treaty, treaties are similar to domestic laws because only sovereigns can make treaties. On the other hand, like contracts, treaties apply only to those who are signatories.

Having first defined treaties and then described some basic characteristics, it is important to turn to the rules applicable to treaties that are set out in the Vienna Convention. The Convention is considered a codification of existing customary law.11 Therefore, non-signatories may be bound to its terms. For example, the United States has signed, but the Senate has not given its advice and consent to, the Vienna Convention. Yet the U.S. State Department has acknowledged that the United States is bound to its terms as they reflect binding customary norms.12

Because this is a volume on trade and human rights, it is important to emphasize that the Vienna Convention’s definition of treaty limits those instruments to written agreements concluded between states. This definition excludes agreements between a state and a private entity, although, through interpretation, the definition has been modified in practice to include agreements between a state and an international organization because such organizations are considered subjects of international law. In all cases, it is only the trade compacts concluded between and among states that qualify as treaties.

It is also important to note at this juncture that not all agreements between states are necessarily treaties. To be treaties, the agreements must be governed by international law. Thus, an agreement between State A and State B for the purchase by State A of State B’s beef using a standard form contract of the meat trade will not be deemed a treaty. Similarly, the purchase of a building or a piece of land by a state, when the contract is subject to the law of the municipality or a third state, will not be deemed a treaty.

1.3 International Law-Making: Specific Provisions

Let us now turn to some provisions of the Vienna Convention to ascertain what determines whether an instrument is a “treaty.” Part II of the Convention lays out the requirements for the “Conclusion and Entry into Force of Treaties” with Section 1 addressing the conclusion of treaties and Section 2 addressing reservations.

Regarding conclusion of treaties, Article 6 of the Vienna Convention provides that all states have the capacity to enter into a treaty. To be a state in international law, an entity must satisfy four requirements: it must have (a) defined territory; (b) permanent population; (c) a government capable of controlling the territory; and (d) a government with the ability to enter into international relations.13 One significant article in the first section of the Convention is Article 18, which imposes on signatories an obligation not to act in a way that “would defeat the object and purpose of a treaty.”

Section 2, “Reservations,” articulates an important concept in treaty-making. Reservations are “unilateral statement[s] … made by a state, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State” (art. 2(d)). Thus, reservations allow states unilaterally to modify the terms of a treaty or the legal effect of the terms of a treaty. However, the Vienna Convention prohibits reservations that are “incompatible with the object and purpose of the treaty” (art. 19(c)). To ascertain incompatibility, the analysis scrutinizes the reservation in light of the purpose of the treaty. Reservations that frustrate the purpose of a treaty are invalid, even if in theory a state can object to whatever it wants based on its sovereignty.

Articles 20-23 detail the rules regarding reservations, including, respectively, states’ acceptance of and objection to reservations, the legal effect of reservations, withdrawals of reservations and objections thereto, and procedural requirements in making or accepting reservations, including that they be in writing. A state decides whether it deems the reserving party a party to Convention. In essence, these details emphasize that contracting states want to keep alive the “basics” of the Convention. With bilateral agreements, for instance, a reservation is the equivalent of a counteroffer to a contract in U.S. domestic law. While going into further detail on reservations is outside the scope of this chapter, it is important to note that the processes of making reservations and of objecting to or accepting reservations leads to complicated analyses about what states are bound by what terms of a treaty. The complexity is underscored when parties to multilateral instruments make multiple reservations.

Part III of the Vienna Convention focuses on the “Observance, Application, and Interpretation” processes. Article 26 sets out a basic principle of international law: pacta sunt servanda, which means that parties are bound by treaties and have an obligation to perform their terms in good faith. Parties cannot invoke internal law as grounds to fail to comply with a treaty obligation (art. 27). Treaties are not retroactive (art. 28), are binding on parties within their entire territory (art. 29), and their terms are to be interpreted in good faith in accordance with “the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose” (art. 31(1)). Article 32 allows use of the travaux preparatoires—preparatory works—developed during negotiations to assist in the interpretation of treaties. Significantly, the allowance of the use of travaux preparatoires might be a disadvantage to states that did not participate in negotiation of the treaty but became signatories later, as their voices are absent from the travaux.

Two other parts round out the substantive provisions of the Vienna Convention: Part IV addresses “Amendment and Modification of Treaties” and Part V focuses on the “Invalidity, Termination, and Suspension of the Operation of Treaties.” Part V specifically articulates error (art. 48), fraud (art. 49), corruption of a state representative (art. 50), coercion of a representative of a state (art. 51), and coercion of a state by threat of use of force (art. 52) as grounds for invalidating a treaty.

Part V also contains two articles that are important for purposes of this work. One is Article 53, which provides that if, at the time that it is concluded, a treaty conflicts with a peremptory norm of general international law—a norm from which no derogation is permitted—the treaty is void. Related to Article 53 is Article 64, which provides that if a new peremptory norm emerges, “any existing treaty which is in conflict with that norm becomes void and terminates.”

The jus cogens principle is particularly relevant to this volume as it is a concept of critical importance in human rights law. A rule of jus cogens can be derived from custom and treaties but not from other sources. In early international law this principle was articulated by writers saying that a treaty would be void if it was contrary to morality or to basic principles of international law: a treaty could not override natural law. Jus cogens, thus, prohibits states from contracting out of peremptory norms that are deemed binding customary norms. The concept has been adopted in several human rights contexts internationally and domestically alike.

Significantly, the Vienna Convention does not itself identify any such norms, and scholars are not in full agreement regarding precisely what norms are peremptory. As noted above, however, it is generally accepted that, for example, the prohibitions against genocide; slavery; murder or causing the disappearance of persons; torture or other cruel, inhuman, or degrading treatment or punishment; prolonged arbitrary detention; systematic racial discrimination; and consistent patterns of gross violations of recognized human rights norms are all deemed be peremptory norms against which no state may derogate. Thus, a treaty to commit genocide, or a treaty to legalize any form of a slave trade, would be void as in contravention of jus cogens. This signifies that although a trade agreement might not directly address human rights issues, all such agreements are, by necessity, concluded in a context of universal acceptance that they cannot derogate from peremptory norms and a general agreement as to what some such norms are.

1.4 International Law as U.S. Law

The following overview of international law-making and its relation to domestic law (using the United States as an example) is intended to familiarize the reader with general international law-making, as all the themes that we will engage in this volume are “binding law” by virtue of both international norms—be they conventional or customary—and domestic norms. The trade agreements, bodies, and processes that will be introduced in chapter 2 and the human rights agreements, bodies, and processes that are introduced in chapter 3 all are either custom- or treaty-based.

With the international rules in mind, it is instructive to review U.S. domestic law on treaties. As briefly noted above, the U.S. Constitution requires the president to make treaties and then obtain the advice and consent of a two-thirds majority of the Senate. Thus, in the United States, the treaty-making power is one of executive-congressional codetermination. It is noteworthy that, contrary to popular usage, the Senate’s role is not one of ratification—rather, the Senate’s role is to give advice and consent. Ratification takes place when the parties formally exchange ratification instruments. We often witness the exchange of ratification instruments in Rose Garden ceremonies when the president signs the instrument after obtaining the requisite senatorial advice and consent. It is always a plenipotentiary who signs the instrument’s ratification.

Although treaty power is one of executive-congressional codetermination, in recent years it effectively has moved, at least outside the trade regime, toward becoming a presidential monopoly by executive use of other types of agreements that have been considered the functional equivalent of treaties. The most notable of the alternatives is the sole executive agreement. The other is the executive agreement pursuant to legislation or joint resolution. Both of these alternatives satisfy the Vienna Convention definition of “treaty,” although they fall short of U.S. constitutional requirements because they lack the advice and consent of two-thirds of the Senate. It is undisputable that before and after adoption of the Constitution, however, the president signed international agreements that were binding without the Senate’s advice and consent.

Effectively, the president utilizes the sole executive agreement to bypass the Senate. There is constitutional authority for such agreements, however, if they are based on express presidential powers such as commander in chief, authority to receive ambassadors, or implied powers to conduct foreign relations. It thus becomes simply an undeclared treaty that seeks to avoid paying constitutional dues by changing its name. It is an agreement between the president or his or her subordinates and a foreign counterpart; this agreement, because it is not submitted to the Senate for its advice and consent, cannot be a treaty for constitutional purposes.

In the early days pure executive agreements were rare, and when they existed they were limited in scope. For instance, there might be an executive agreement for the exchange of prisoners of war. But they became much more frequently used in the 20th century. The high-water mark for such agreements came with President Franklin Delano Roosevelt’s recognition of the communist regime in Moscow and the transfer of title to Russian properties in the United States to compensate U.S. citizens who had lost on investments in Russia. The U.S. Supreme Court held that the executive agreement recognizing Russia and effecting the transfer of property was constitutional because it constituted the exercise of president plenary power to recognize foreign governments.14

One problem with this sole executive agreement approach is that it avoids constitutional checks and balances. The country cannot be sure about what obligations are being assumed and foreign nations cannot be certain what obligations Congress will consider binding. A unilateral executive approach also has the potential for causing difficulties for the executive in carrying out the agreement’s obligations should any funds be needed, as it is Congress that possesses the power of the purse. To be sure, the trend toward executive agreements has caused concern in the Senate, which feels squeezed out of its advice and consent function.

In fact, as a result of the proliferation of executive agreements in 1972, Congress, relying on the “necessary and proper” clause, passed the Case-Zablocki Act,15 which requires regular reporting to the Senate about ongoing international negotiations.16 It provides Congress with surveillance power over executive agreements as the secretary of state must send to Congress the text of any international agreement to which the United States is a party, including oral ones, other than a treaty (by constitutional standards), within sixty days of the agreement coming into force. Moreover, the president under his or her own signature, “not later than March 1, 1979, and at yearly intervals thereafter,” must transmit to Congress a report concerning what agreements were negotiated after the expiration of the sixty-day period with an explanation for the delay.17

Early executive agreements were mostly made pursuant to legislation or joint resolution of Congress. The executive agreement pursuant to legislation avoids having to obtain the advice and consent of a supermajority of the Senate. Today, executive officials cite the early cases to conclude that such historical reality legitimizes the use of executive agreements.

In the original draft of the Constitution, the Committee of Detail assigned the treaty power solely and exclusively to the Senate. The shift to a shared executive-Senate function requiring a supermajority vote in the Senate reveals a desire for a higher degree of consensus for passage of an international agreement than for ordinary law. In fact, a proposal at the Constitutional Convention that international law be made by the president and a simple majority of both chambers of Congress was rejected. In light of this history, it is interesting that the executive agreement plus joint resolution is one of the accepted treaty alternatives.

Significant events in U.S. history have occurred pursuant to these other agreements. For example, the annexation of Texas in 1845 was accomplished by executive agreement plus joint resolution. The President opted for that alternative after the Senate vote did not yield the two-thirds supermajority necessary for a constitutionally defined treaty.18 More recently, and significant to this volume, a constitutional challenge to the validity of the North American Free Trade Agreement (NAFTA), based on its being concluded as a congressional-executive agreement, failed.19

Clear constitutional language on treaties notwithstanding, presidents have come to treat the formal agreements together with sole executive agreements and executive agreements plus joint resolution as interchangeable. Even the U.S. Department of State endorses these three alternative approaches to making international agreements: (1) agreements pursuant to treaty; (2) agreements pursuant to legislation; and (3) agreements pursuant to constitutional authority of the president: (a) as chief executive representing the nation in foreign affairs, (b) to receive ambassadors and other public ministers, (c) as commander in chief, and (d) to take care that the laws be faithfully executed.20

These trends notwithstanding, there are some subjects that warrant an agreement that follows the traditional constitutional Article II treaty process.21 These include themes that are central to this volume: human rights, boundaries, immigration, intellectual property, taxation, the environment, and agreements to join international organizations (most but not all). On the other hand, it is advantageous to have the flexibility of utilizing different forms of international agreements as other matters key to this work are within the traditional congressional-executive realm: trade and finance, for example.

Because the U.S. Constitution gives authority in Article I, § 8, to both houses of Congress to conduct foreign commerce (another term for international trade), and to the executive branch in Article II, § 1, “to make treaties,” the responsibility to negotiate trade agreements is shared and is treated specially under U.S. law. Through periodically renewed “fast-track authority” legislation, the Congress sets forth detailed U.S. trade negotiating objectives to be followed by the executive in reaching agreement on, for example, establishment or revision of World Trade Organization (WTO) Agreements or regional agreements such as the NAFTA or the U.S.-Chile Free Trade Agreement (FTA).22

After consulting with congressional trade committees, the executive signs the trade agreement with his counterparts, then the president formally notifies the text of the agreement to both houses of Congress for the drafting of implementing legislation that will exercise whatever discretion is given the signatories by the agreement’s terms. Congress may not make revisions to the agreement at this stage, else the negotiating credibility of the United States would be destroyed. The agreement and legislation must be considered quickly (thus the legislation’s nickname) and, if both houses of Congress agree, the implementing legislation will also “approve” the agreement—the final step in making it binding on the United States as a “treaty” within the meaning of the Vienna Convention, if not within the meaning of the U.S. Constitution.

Several observations regarding custom, treaties, their relationship to each other, their role as U.S. law, and some principles of U.S. law are appropriate. Article VI of the Constitution makes treaties the law of the land. Therefore, an Article II treaty has the status of domestic law in addition to being international law. Courts of the United States must give effect to international law and to international agreements. A non-self-executing agreement, however, will not be given domestic effect absent implementing legislation. An agreement is non-self-executing if by its terms the agreement evinces an intent that it is not to become domestic law absent implementing legislation or if the Senate, in giving its advice and consent, or Congress in a joint resolution, expressly notes that the treaty requires implementing legislation to become effective as domestic law. In addition, there may be instances in which implementing legislation may be constitutionally required. An international agreement cannot take effect as domestic law without implementation by Congress if the agreement would achieve what lies within the exclusive law-making power of Congress under the Constitution. For example, an international agreement creating an international crime could not become part of U.S. criminal law without the appropriate congressional enactment.23

As noted above, both custom and treaties are part of U.S. law as well as of international law. Custom and treaties, both primary sources of international law, are of equal authority in the international realm. Absent the expression of intention to the contrary, the later in time rule applies to resolving conflicts between custom and treaty: a rule established by treaty will displace a prior inconsistent customary norm, except if the prior custom is a peremptory norm from which no agreement can derogate. Conversely, if there is a clear intent, a later customary norm will supersede a prior inconsistent conventional obligation.24

Similarly, there is a later in time rule that applies in instances of inconsistency between a U.S. domestic norm and an international norm—be it customary or conventional. Under the Constitution, treaties and statutes are coequal, much like treaties and custom are coequal. Article VI of the Constitution, the Supremacy Clause, creates this relationship. Specifically, the article provides that “this Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land.”

Thus, given their coequal status, if congressional intent is clear, a later congressional act supersedes an earlier international norm. In this regard, two observations are appropriate. One, unless there is a clear intent to the contrary, domestic rules will be interpreted as far as possible to be consonant with existing binding international norms. Consequently, the later in time rule will be applied so as not to conflict with international law. Two, even if the clear congressional intent exists to supersede the international norm, while as a matter of domestic law the new domestic norm is binding in U.S. domestic courts, the rule of international law that is superseded domestically is still binding on the state internationally and the state remains internationally obligated to obey the norm.

The later in time rule also operates when a treaty is adopted that has a provision that conflicts with existing domestic law or treaty so that the later in time prevails. In effect, a later treaty—and in the United States this includes all its functional equivalents, such as the sole executive agreement and the executive agreement plus joint resolution—can supersede domestic law so long as the subject matter lies within the constitutional authority of the body or bodies concluding the agreement. If the agreement’s scope lies beyond the powers of the entity concluding the agreement, however, it will not supersede a prior norm made with full authority.25 For example, a sole executive agreement concerning a trade embargo, which is a subject matter that constitutionally lies within the jurisdiction of Congress under the provision governing the regulation of commerce with foreign nations, will not be “later in time” so as to supersede a prior domestic law or a prior treaty.

Finally, a brief note on federalism is appropriate. Because treaties and custom are within the federal government’s jurisdiction, any inconsistent state law or policy, regardless of whether it is earlier or later in time to the federal policy, will fail. Such was the fate of a Massachusetts law seeking to forbid trade with Burma because of that nation’s human rights record.26

With these basic rules of international law and with some foundational interpretive tools for establishing the relationship between international and domestic norms, we now review the general concepts of trade (chapter 2), human rights (chapter 3), and their intersection (chapter 4). Subsequent chapters will study particular human rights in light of this extensive background.