Customary international law

1. Customary international law Lecture 9 February 2

2. 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

3. 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)

4. 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

5. 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

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

7. 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

8. 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.

9. 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.