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Applying customary international law.

Case: The Paquete Habana (1900, US)

Facts: Two fishing vessels, running in and out of Havana, owned by a Spanish
subject a Cuban birth, were captured by US Naval vessels and claimed as prizes of
war, as part of a blockade of Cuba in the Spanish American War. Vessels had no
weapons onboard, and didn’t know of the blockade until they were captured. There
was no evidence vessels were aiding the enemies, and they made no attempt to run
or resist capture. The vessels were then auctioned off by the district court.
The owner brought the claim on behalf of himself and the crew (who had 2/3 shares
interest of the catch), citing a tradition of exempting fishing vessels from being
captured as prizes of war. This international custom dates back to a decree issued
by Henry VI, and has been more or less observed by a majority of states since.

Issue: Whether the customary doctrine of exempting fishing vessels from being
captured as prizes of war should be enforced.

Holding: District court order reversed, and the proceeds of the sale of the
vessels and its cargo, be restored to claimant, along with damages and costs.

Reasoning: Court said that international law is part of our law, and when there
is no treaty or other governing force, we must look at the customs and usages of
civilized nations. The court looked at many legal precedents and treaties
establishing this customary international law, and found that the capture of the
vessels was unlawful and without probable cause. Court found no evidence that the
vessels or its crew would aid the enemy; it was just a fishing vessel. Court also
noted that it was the "general policy of the government to conduct the war in
accordance with the principles of international law."

Notes

• First question: Whether or not there is customary international law? When does
custom ripen to law?
○ Factors the court uses (here and in the asylum case) - have to be found
§ the objective requirement - Practice of states
§ States must be acting a certain way to be custom
§ The subjective requirement - opinion juris (reason/psychology)
§ Why are states acting that way?
® They have to be acting a particular way because they feel
compelled by law - They must show that the practice is coming about because the
state feels compelled by law
◊ Like cordiality - you have to prove there's law
behind it, usually not
○ Evidence to find these factors - What did court use in Havana case in
order to find these factors?
§ Objectively
§ Scholarship
§ Treaties of other nations (bilateral treaties)
§ Court also noted the lack of competing principles
§ Proclamations (p. 99) - the members of the country are
proclaiming the practice
§ Subjectively
§ by acting in a certain way (abiding by treaty), they are acting
this way because they are compelled by law
• By looking at the sources of the evidence, court finds sufficient to enforce the
custom
• Critique:
○ there is no rule of law. Unclear.
○ In notes, a critique of the subjective requirement

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