Chicago Journal of International Law


In this Development, I argue that a narrow approach to identifying customary norms of international law ignores the legal significance of treaty negotiation. Because a number of countries (including the United States, used herein as an example) traditionally adopt universalist stances during the negotiation of international human rights treaties, domestic tribunals in those nations should look to executive branch pronouncements as indicators of international law norms available for enforcement in domestic tribunals. If a state's executive branch advances a universalist understanding of human rights contained in a treaty, the executive branch's statements on the universality of the legal norm should support private enforcement of the norm, even if the treaty is not self-executing or if the state does not ratify the treaty. Such an approach would speed the adoption of emerging human rights norms by cultural-relativist nations, and would simultaneously allow courts to take advantage of the executive branch's superior institutional competence in the realm of foreign affairs. Given the undeniable importance of executive branch pronouncements in determining international law, courts should begin to take note of universalist and cultural-relativist stances during the negotiation of non-self-executing and non-ratified treaties, and should use those statements to guide their determination of privately enforceable norms in that state's domestic tribunals.