#11157 - Sources Of International Law - International Law I

Sources of International Law

1. Customary International Law

   1. Incorporation of Customary International Law into Domestic Law

      1. "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." The Paquete Habana - pg. 102

      2. In the absence of contrary authority, customary international law is a part of domestic law. See The Paquete Habana - pg. 102

         • "[W]here 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 . . . ." The Paquete Habana - pg. 102

      3. The law of nations "may be ascertained by consulting the works of jurists, writing professedly on public law; or by the general usage and practice of nations; or by judicial decisions recognizing and enforcing that law." Filartiga v. Pena-Irala - pg. 20

         • SOURCES OF LAW CONSULTED in Filartiga:

           • Judicial Decisions/Statements by Judges (No endorsement of torture)

           • International Agreements that Ban Torture (though none applicable)

           • National Constitutions

           • Statements by Government Representatives

           • U.N. General Assembly Resolutions

           • Affidavits of International Law Experts

      4. As evidence of the customs and usages of civilized nations, courts will look "to the works of jurists and commentators, who by years of labor, research and experience, have made themselves particularly well acquainted with the subjects of which they treat." The Paquete Habana - pg. 102

         • "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 Paquete Habana - pg. 102

           • The Court in The Paquete Habana noted that "Wheaton places, among the principle sources of international law, 'Text-writers of authority, showing what is the approved usage of nations, or the general opinion respecting their mutual conduct, with the definitions and modifications introduced by general consent.'"

         • NOTE: In many countries, International Law trumps Domestic Law

      5. Courts will also look to the sources of law from other nations

         • "In the absence of higher more authoritative sanctions, the ordinances of foreign States, the opinions of eminent statesmen, and the writings of distinguished jurists, are regarded as of great consideration on questions not settled by conventional law." The Paquete Habana - pg. 102

           • "In cases where the principal jurists agree, the presumption will be very great in favor of the solidity of their maxims . . . ." The Paquete Habana - pg. 102

      6. Judges should interpret acts of congress and domestic law such that it is not inconsistent with international law. See Murray v. Schooner Charming Betsy - pg. 266

         • "[A]n act of congress ought never to be construed to violate the law of nations, if any other possible construction remains, and consequently, can never be construed to violate neutral rights, or to affect neutral commerce, further than is warranted by the law of nations as understood in this country." Murray v. Schooner Charming Betsy - pg. 266

      7. The law of nations is a part of the common law. See Respublica v. De Longchamps - pg. 260

         • BUT, does a violation of the law of nations give rise to a cause of action?

           • Traditional Rule: As it used to be common to prosecute crimes based on common law crimes, and since the law of nations is a part of the common law, a violation of customary international law could give rise to a cause of action. See Respublica v. De Longchamps - pg. 260

           • Modern Rule: The prosecution of common law crimes has all but vanished in the United States. Thus, a cause of action would require a statute that specifically grants jurisdiction based on a violation of the law of nations. See, e.g., Filartiga v. Pena-Irala (inferring the existence of a cause of action from the grant of jurisdiction provided by the Alien Tort Statute for actions brought by aliens for torts committed "in violation of the law of nations")

      8. The violation of customary international law may give rise to a cause of action where "the law of nations" is specifically referenced in the statute. See, e.g., Filartiga v. Pena-Irala (inferring the existence of a cause of action from the grant of jurisdiction provided by the Alien Tort Statute for actions brought by aliens for torts committed "in violation of the law of nations").

         • Alien Tort Statute, 28 U.S.C. § 1350: "The district courts shall have original jurisdiction of any civil action by an alien for tort only, committed in violation of the law of nations or a treaty of the United States."

           • BUT, where the issue is one of Foreign Sovereign Immunity, the Alien Tort Statute does not provide for jurisdiction; the action would need to fall under one of the specific exceptions contained within the Foreign Sovereign Immunity statute.

   2. Customary International Law in the International Context

      1. Statute of the International Court of Justice

         • Article 38:

           • "1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

             • a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting state;

             • b. international custom, as evidence of a general practice accepted as law;

             • c. the general principles of law recognized by civilized nations;

             • d. subject to the provisions of Article 59, judicial decisions and teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law."

           • "2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto."

         • Article 59

           • "The decision of the Court has no binding force except between the parties and in respect of that particular case."

      2. Regional or Local Custom

         • "The party which relies on a custom of this kind must prove that this custom is established in such a manner that it has become binding on the other party. The [country asserting the existence of such a custom] must prove that the rule invoked by it is in accordance with a constant and uniform usage practised by the States in question . . . ." The Asylum Case - pg. 108

      3. For a state to assert domestic jurisdiction without violating international law, there is no requirement that there be a rule of customary international law making jurisdiction permissible; rather, the only requirement is that there not be a rule of customary international law forbidding jurisdiction. See The Lotus Case - pg. 116

         • "[A]ll that can be required of a State is that it should not overstep the limits which international law places upon its jurisdiction; within these limits, its title to exercise jurisdiction rests in its sovereignty." The Lotus Case - pg. 116

           • Of course, this will only determine whether the assertion of jurisdiction is a violation of international law NOT whether the state will do it anyway.

      4. In determining whether or not the existence of a convention is sufficient to show the existence of a rule of customary international law, the number of signers to the convention is a crucial factor. See The Asylum Case - pg. 108-09

   3. RULES OF CUSTOMARY INTERNATIONAL LAW

      1. "[I]t is an established rule of international law . . . that coast fishing vessels, with their implements and supplies, cargoes and crews, unarmed, and honestly pursuing their peaceful calling of catching and bringing in fish, are exempt from capture as prize of war." The Paquete Habana - pg. 103

         • But, this rule "does not apply to coast fishermen or their vessels, if employed for a warlike purpose, or in such a way as to give aid or information to the enemy; nor when military or naval operations create a necessity to which all private interests must give way." The Paquete Habana - pg. 103

         • The rule also doesn't apply "to ships or vessels employed on the high seas in taking whales or seals, or cod or other fish which are not brought fresh to market." The Paquete Habana - pg. 103

         • "Like all the laws of nations, it rests upon the common consent of civilized communities. It is of force, not because it was prescribed by any superior power, but because it has been generally accepted as a rule of conduct." The Paquete Habana - pg. 103

      2. There is no established rule of international law requiring a country to provide safe passage out of the country for an individual who was granted asylum by another nation's embassy within its borders. See The Asylum Case - pg. 109

      3. There is an established rule of customary international law that forbids torture. See Filartiga v. Pena-Irala -pg. 19

         • "[T]he law of nations prohibits absolutely the use of torture . . . ." Filartiga v. Pena-Irala -pg. 19

      4. Where an act occurs on a ship on the high seas, the act should be treated as if it had occurred upon the soil of the nation whose flag the ship is flying. See The Lotus Case - pg. 118

         • "A corollary of the principle of the freedom of the seas is that a ship on the high seas is assimilated to the territory of the State the flag of which it flies. . . ." The Lotus Case - pg. 118

      5. For a state to assert domestic jurisdiction without violating international law, there is no requirement that there be a rule of customary international law making jurisdiction permissible; rather, the only requirement is that there not be a rule of customary international law forbidding jurisdiction. See The Lotus Case - pg. 116

         • "[A]ll...