Customary Int’l Law & the Paquete -Habana Case

1. Customary Int’l Law & the Paquete-Habana Case In the absence of treaties, “resort must be had to the customs and usages of civilized nations, and, as evidence of these, to the works of jurists and commentators who by years of labor, research, and experience have made themselves peculiarly well acquainted with the subjects of which they treat.” - Justice Gray , Paquete Habana Case (1900)

2. Customary international law • Reviewing the Sources of Intl Law(ICJ Statute 38) • Treaties • Customary Intl Law • General Principles recognized by civilized nations • Judicial Decisions and teachings • Also note differences between Soft law and hard law • (see pg 39 of Ch 2) • IMPORTANCT OF CUSTOMARY INT’L 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)

3. Customary international law Customary int’l law (by definition) = state practice +opinio juris I. State practice = Objective element 1) Duration – (how long has this norm been in practice) 2) Uniformity, consistency of the practice – (haw many states have followed it?) 3) Generality of practice – (universality is notrequired) 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 • opinio juris is the second element (along with state practice) necessary to establish a legally binding custom. Opinio juris denotes a subjective obligation, a sense on behalf of a state that it is bound to the law in question. • 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. Customary IL - may be adjusted through treaties UNLESS the custom(s) is/are recognized as JUS COGENS. (Jus cogens= peremptory norms, which means that states cannot opt out of them, even if the state is not party to any treaty which describes the behavioral norm they are obligated to uphold)

4. Evidence of Customary Int’l Law(Where is Customary IL found?) • diplomatic correspondence, policy statements, press releases, the opinions of official legal advisers, official manuals 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 int’l organs, resolutions relating to legal questions in the UN General Assembly, judicial decisions, and publications by intl law commentators • Source: www.sobek.colorado.edu/~halvorss/Intl-law

5. The PaqueteHabana, , 175 U.S. 677 (1900) • Case brief elements • Setting and Parties (Setting/Court and Parties) • Nature of the Case • Rule of Law • Issue • Facts • Holding and Decision: • Include Sources of IL used by the court • Reasoningof the judge/justice • Be sure to understand the significance of the case: • Follow along with case brief sheet provided to you…

6. The Paquete Habana • Court: US Supreme Court. 1900 • US Navy (P) • Private fisherman from Cuba (D) • Sources used/examined by Justice Gray: Treaties, custom, teachings by eminent scholars, municipal law as evidence • Facts (brief overview): 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 (upheld by District Ct in Florida)

7. Paquete Habana • Issue – Are fishing vessels exempt from capture as prize of war? • 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. US Blockade of Cuba

8. 6. Reasoning- • Customary intl law – clearly shows fishing vessels are exempt from capture. • Earlier treaties (going back to 1403)– generally accepted rule of conduct among many nations. Hence, viewed as generally accepted universal obligation. • Custom and usage of nations – several states had edicts, orders, or instructions exempting fishing boats from capture at times of war – this shows how the custom had ripened into int’l law, • evidenced by works of jurists and commentators.

9. Review Questions: The Paquete-Habana, 175 U.S. 677 (1900) • In what war did this case arise? • What type of vessels were seized? • What did the owners cite as law prohibiting the seizures? • Did the court find any contrary law? • What did it rule? • ‘‘international law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction.’’

10. Justice Gray's Limitation • What did Justice Gray say limits this finding? • It did not apply to vessels… • “employed for a warlike purpose, or in such a way as to give aid or information to the enemy.” • “when military or naval operations create a necessity to which all private interests must give way.” • “employed on the high seas” whose catch was “not brought fresh to market.” • While the courts have not directly considered subsequent statutes overruling international law norms, what have they considered that is analogous? • ‘‘since violation of a treaty is essentially a violation of the principle of customary international law requiring that treaties be observed.’’