Customary international law

Lecture 9
February 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
 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)
 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

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