Customary international law

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Customary international law

• Lecture 9
• February 2

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ASSIGNMENT -

• Wednesday, Feb. 4
• Customary International Law
• Asylum Case
• Lotus case
• The Texaco/Libya Arbitration
• REMEMBER DEADLINE FOR TOPIC FOR RESEARCH PAPERS
  IS Friday, Feb.6 sign-up sheet on my desk
• Midterm, March 2 - EKLC E1B20
• Wednesday, March 4 Guest Speaker
• Adjunct Professor David Akerson
• TODAY
• QUIZ
• Paquette Habana

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Customary international law

• PUT IN PERSPECTIVE
• Sources of Intl Law
• 1. Treaties
• 2. Customary Intl Law
• 3. General Principles recognized by civilized
  nations
• 4. Judicial Decisions and teachings
• 5. Soft law
• CUSTOMARY INTL LAW
• - non-treaty sources are more universal in their
  reach than treaties
• - provide the essential context of law in which
  to interpret treaties
• - But more difficult in terms of defining the
  rules and ascertaining party consent (if any)

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Customary international law

• Customary intl law DEFINITION - state practice
  opinio juris
• I. State practice Objective element
• 1) Duration -
• 2) Uniformity, consistency of the practice -
• 3) Generality of practice universality is not
  required
• II. Opinio juris Subjective element
• accepted by states Art.38(1)(b) doing the
  practice out of a sense of legal obligation as
  opposed to motives of courtesy, morality or
  fairness
• The problem is one of proof.
• (sometimes the court infers opinion juris)
• Persistent objector- a state may contract out of
  a custom in the process of formation. Objection
  must be clear. Anglo-Norwegian Fisheries case
  Norway was allowed to enforce her system of wider
  than ordinary exclusive fishing zone.
• CIL - may be adjusted through treaties UNLESS
• JUS COGENS peremptory norms states cannot
  opt out
• Different types of custom regional or general
  custom

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Evidence of customary intl law

• - diplomatic correspondence, policy statements,
  press releases, the opinions of official legal
  advisers, official maunuals on legal questions,
  such as manuals of military law, executive
  decisions and practices, orders to naval forces
  etc., comments by governments on drafts produced
  by the ILC, state legislation, international and
  national judicial decisions, recitals and other
  international instruments, a pattern of treaties
  in the same form, the practice of intl organs,
  resolutions relating to legal questions in the UN
  General Assembly, judicial decisions, and
  publications by intl law commentators

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The Paquete Habana

• 1. Court
• 2. Sources
• 3. Facts
• 4. Issue
• 5. Holding and Decision
• 6. Reasoning
• 7. Significance of case

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The Paquete Habana

• 1. Court US Supreme Court
• 2. Sources Treaties, custom, teachings by
  eminent scholars, municipal law as evidence
• 3. Facts Spanish American War Spanish fishing
  vessel in and out of Havana cargo fresh fish
  no offensive arms, no suspicion of intelligence.
• Captured by the US navy as prize of war

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Paquete Habana

• 4. Issue Are fishing vessels exempt from
  capture as prize of war?
• 5. Holding and Decision Yes. Fishing vessels
  are exempt from capture as prize of war as long
  as no arms and not assisting the enemy. Paquete
  Habana just a fishing vessel no attempt to run
  the blockade, no arms on board.
• Decision The Capture of Paquete Habana was
  unlawful decree by District Court ordered
  reversed.

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6. Reasoning-

• Customary intl law clearly shows fishing
  vessels are exempt from capture.
• 1) Earlier treaties generally accepted rule of
  conduct. Generally accepted universal
  obligation.
• 2) Custom and usage of nations several states
  had edicts, orders, or instructions exempting
  fishing boats from capture at times of war -
  ripened into intl law,
• 3) evidenced by works of jurists and commentators.