Cases

Sunday, July 31, 2011 11:12 AM

Paquete Habana Case The fishing vessels case J. Gray "International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty and no controlling executive or legislative act or judicial decision, 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. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is."

The Scotia Case (1871) Case: Customary Law

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 Reasoning: 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. Like all the laws of the nations, it rests upon the common consent of civilized communities. It 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 30 of the principal commercial states of the world, including almost all of which have any shipping on the Atlantic Ocean, we are required 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. It 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. Asylum Case (1950) Fact: Torre,head of the American People's Revolutionary Alliance sanctuary, after his faction lost a one day civil war in Peru on 3 October 1948, the unsuccessful leader of a military rebellion in Peru in 1948, sought political asylum in the Columbian embassy in Lima. Peru refused to allow Torre to leave the country, and insisted he be given over to Peru to be tried for military rebellion. Dispute referred to the ICJ, which first decided that Columbia had no treaty right to declare that Torre was entitled to the status of a political offender eligible for political asylum. The ICJ then turned to customary international law.
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of a political offender eligible for political asylum. The ICJ then turned to customary international law. Background: Article 14 of the Universal Declaration of Human Rights states that "Everyone has the right to seek and to enjoy in other countries asylum from persecution." The United Nations 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees guides national legislation concerning political asylum. Under these agreements, a refugee (or for cases where repressing base means has been applied directly or environmentally to the defoul refugee) is a person who is outside their own country's territory (or place of habitual residence if stateless) owing to fear of persecution on protected grounds. Protected grounds include race, nationality, religion, political opinions and membership and/or participation in any particular social group or social activities. Since the 1990s, sexual persecution has come to be accepted in some countries as a legitimate category for asylum claims, when the claimant can prove that the state is unable or unwilling to provide protection. Issue: Whether there is an custom so established that it is binding to allow Columbia to grant political asylum. Holding: No evidence as to custom allowing Columbia to grant political asylum and binding Peru. In the Asylum Case (Colombia v Per), judgement 20 November 1950 (General List No. 7 (19491950)), the International Court of Justice (ICJ) recognised that Article 38 of the Statute of the International Court of Justice encompassed local custom as well as general custom, in much the same way as it encompasses bilateral and multilateral treaties Reasoning: Columbia cited several conventions, of which some Peru was not a party so not binding, and others that were accepted by so few states it is very weak. Columbia also refers to many cases where political asylum was granted, but court cannot determine whether they were granted due to usage, or for political expediency. Court says Columbian gov't has not through its arguments proven the existence of such a custom. And, if there was such a custom, it could not be enforced against Peru, b/c they were not party to the Montevideo convention which included matters of political asylum. RULE: To invoke a customary international law, you have to prove it has been used fairly often, and adopted by many states. Also, you cannot bind a state to a treaty to which it did not ratify.

Notes: How does this relate to CIL? Because the question is if there is CIL that governs asylum. No CIL here because not overwhelmingly adopted by enough states One of the treaties raised, Peru didnt sign onto. Another signed on to by a limited number of states. Weak evidence showing indication of CIL . Peru has not acted in a way that showed they practiced this custom. No evidence of consent to the custom. The persistent objection consent If Peru objects persistently, even if custom very common, they still wouldnt be bound (unless it was a natural right)
UK v. Iceland fishery Zone Conflict (Cod Wars) The Cod Wars, also called the Icelandic Cod Wars (Icelandic: orskastrin, "the cod war", or Landhelgisstrin, "the war for the territorial waters"), were a series of confrontations in the 1950s and 1970s between the United Kingdom and Iceland regarding fishing rights in the North Atlantic. In 1972, Iceland unilaterally declared an Exclusive Economic Zone (EEZ) extending beyond its territorial waters, before announcing plans to reduce overfishing. It policed its quota system with the Icelandic Coast Guard, leading to a series of net-cutting incidents with British trawlers that fished the areas. As a result, the Royal Navy deployed warships and tugboats to act as a deterrent against any future
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result, the Royal Navy deployed warships and tugboats to act as a deterrent against any future harassment of British fishing crews by the Icelandic craft, resulting in direct confrontations between Icelandic patrol vessels and British warships, which included ramming incidents. The dispute ended in 1976 after Iceland threatened to close a major NATO base in retaliation for Britain's deployment of naval vessels within the disputed 200 nautical mile (370 km) limit. The British government conceded, and agreed that after 1 December 1976 British vessels would not fish within the previously disputed area. Nicaragua v. US The Republic of Nicaragua v. The United States of America was a 1984 case of the International Court of Justice (ICJ) in which the ICJ ruled in favor of Nicaragua and against the United States and awarded reparations to Nicaragua. The ICJ held that the U.S. had violated international law by supporting the Contras in their rebellion against the Nicaraguan government and by mining Nicaragua's harbors. The United States refused to participate in the proceedings after the Court rejected its argument that the ICJ lacked jurisdiction to hear the case. The U.S. later blocked enforcement of the judgment by the United Nations Security Council and thereby prevented Nicaragua from obtaining any actual compensation. The Nicaraguan government finally withdrew the complaint from the court in September 1992 (under the later, post-FSLN, government of Violeta Chamorro), following a repeal of the law requiring the country to seek compensation. The Court found in its verdict that the United States was "in breach of its obligations under customary international law not to use force against another State", "not to intervene in its affairs", "not to violate its sovereignty", "not to interrupt peaceful maritime commerce", and "in breach of its obligations under Article XIX of the Treaty of Friendship, Commerce and Navigation between the Parties signed at Managua on 21 January 1956." The Court had 16 final decisions upon which it voted. In Statement 9, the Court stated that the U.S. encouraged human rights violations by the Contras by the manual entitled Psychological Operations in Guerrilla Warfare. However, this did not make such acts attributable to the U.S.

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