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Case: Customary Law The Scotia Case (1871)

Facts: A dispute arose between the United States ship Berkshire and the British steamer Scotia. The Berkshire was struck by the Scotia because of the Berkshires failure to display coloured lights according to customary law of the sea. Issue: Was the vessel Berkshire in violation of customary international law in failing to display the same coloured lights as those used by other countries Judicial Reasonin : !Undoubtedly" no single nation can change the law of the sea. That law is of universal obligation" and no law of one or two nations can create obligations for the world. #ike all the laws of the nations" it rests upon the common consent of civili$ed communities. %t is of force not because it is prescribed by any superior power" but because it is generally accepted as a rule of conduct. Whatever may have been its origin" whether in the usages of navigation or in regulations of maritime states" or both" it has become the law of the sea only by consistent acceptance and use of those nations who may be said to constitute the commercial world&..' When we find such rules of navigations mentioned in British law and accepted as into the national laws of more than () of the principal commercial states of the world" including almost all of which have any shipping on the Atlantic *cean" we are re+uired to regard them as part at least" the laws of the sea which were in effect during this collision. This is not giving laws of any nations authority outside of their national sovereignty. %t is not treating them as general maritime laws" but it is recognition of the historical fact that by common consent of mankind" these rules have been given as a general obligation. ,. Why are the domestic laws of various nations considered important in deciding whether a practice is customary law -. Summari$e the criteria or factors in determining that a particular practice between or among nations becomes customary law. Why did customary law e.ist in the case above

!ther Cases to Consider


,. The ma/ority of nations in the world have !banned' the killing of whales. 0apan refuses to acknowledge any ban on whaling because for centuries it has been practised by its fishermen1 it remains a vital component of their economy1 and whale meat is a popular part of the 0apanese diet. %s the ban on whaling customary law 2esolve this dispute.
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Without the consent of 3anada" the United States patrols the Arctic seas with its nuclear submarines. The 3anadian government passed a law that !forbids the passage of any nuclear vessels through 3anadian territorial waters'. The United States refuses to abide by the law" claiming that the Arctic seas have been a waterway for commercial maritime passage for the last several centuries.

Unit 453ustomary #aw 3ases.doc

(. 6ot long after launching its first Sputnik into space" the Soviet Union claimed that earth satellites should be able to fly unimpeded over any states territory on the basis of new customary law being created. 3ould the old Soviet Union make at the time a legitimate case for customary international law Would the same principle e.tend to the introduction to bringing weapons into space i.e. star wars programs 7ow high should a states claim over air5space e.tend

Unit 453ustomary #aw 3ases.doc