The Paquete Habana Case Brief 175 U.S.

. 677 Keyed to Damrosch 5th Status: Supreme Court of the United States, 1900 Facts: Two fishing vessels that were fishing out of Havana, Cuba, sailed under a Spanish flag were fishing off the Cuba coast. They were owned a Spanish subject that was born in Cuba and living in Havana. The vessels were commanded by a sub ject of Spain, also residing in Havana. Their cargo consisted of fresh fish, cau ght by their crew. The fish were kept alive to be sold alive. Until stopped by t he blockading squadron they had no knowledge of the existence of the war or of a ny blockade. She had no arms or ammunition on board, and made no attempt to run the blockade after she knew of its existence, nor any resistance at the time of the capture. Procedural History: DC for the Southern District of Florida condemned the two fi shing vessels and their cargos as prizes of war. Issues: Whether a court may look to established rules of other nations when thei r own nation lacks any treaty, legislation, proclamation, or instruction that is on point for a particular matter? Analysis: By an ancient usage among civilized nations, beginning centuries ago, and gradually ripening into a rule of international law, coast fishing vessels, pursuing their vocation of catching and bringing in fresh fish, have been recogn ized as exempt, with their cargoes and crews, from capture as prize of war. In 1403 and 1406 Henry IV ordered that fisherman of foreign nations become under his special protection so that the fisherman in the course of their duty would not be hindered, interfered, or molested by any of his subjects. The doctrine which exempts coast fishermen, with their vessels and cargoes, from capture as prize of war, has been familiar to the United States from the time o f the War of Independence. On June 5, 1779, Louis XVI., our ally in that war, addressed a letter to his adm iral, informing him that the wish he had always had of alleviating, as far as he could, the hardships of war, had directed his attention to that class of his su bjects which devoted itself to the trade of fishing, and had no other means of l ivelihood; that he had thought that the example which he should give to his enem ies, would determine them to allow to fishermen the same facilities which he sho uld consent to grant; and that he had therefore given orders to the commanders o f all his ships not to disturb English fishermen, nor to arrest their vessels la den with fresh fish, provided they had no offensive arms, and were not proved to have made any signals creating a suspicion of intelligence with the enemy; and the admiral was directed to communicate the Kings intentions to all officers unde r his control. Among the standing orders made by Sir James Marriott, Judge of the English High Court of Admiralty, was one of April 11, 1780, by which it was ordered that all c auses of prize of fishing boats or vessels taken from the enemy may be consolida ted in one monition, and one sentence or interlocutory, if under 50 tons burthen , and not more than 6 in number. But by the statements of his successor, and of b oth French and English writers, it apears that England, as well as France, durin g the American Revolutionary War, abstained from interfering with the coast fish eries. In the treaty of 1785 between the United States and Prussia, provided that, if w ar should arise between the contracting parties, all women and children, scholars of every faculty, cultivators of the earth, artisans, manufacturers, and fisher men, unarmed and inhabiting unfortified towns, villages, or places, and in gener al all others whose occupations are for the common subsistence and benefit of ma nkind, shall be allowed to continue their respective employments, and shall not be molested in their persons, nor shall their houses or goods be burnt or otherw ise destroyed, nor their fields wasted by the armed force of the enemy, into who se power, by the events of war, they may happen to fall; but if anything is nece ssary to be taken from them for the use of such armed force, the same shall be p aid for at a reasonable price. Here was the clearest exemption from hostile moles tation or seizure of the persons, occupations, houses, and goods of unarmed fish ermen inhabiting unfortified places.

Wheatons International Laws, says: In many treaties and decrees, fishermen catchin g fish as an article of food are added to the class of persons whose occupation is not to be disturbed in war. The English government, soon afterwards, more than once unqualifiedly prohibited the molestation of fishing vessels employed in catching and bringing to market fresh fish. On May 23, 1806, it was ordered in council that all fishing vessels u nder Prussian and other colors, and engaged for the purpose of catching fish and conveying them fresh to market, with their crews, cargoes, and stores, shall no t be molested on their fishing voyages and bringing the same to market. In the war with Mexico, in 1846, the United States recognized the exemption of c oast fishing boats from capture. It appears that Commodore Conner, commanding th e Home Squadron blockading the east coast of Mexico, on May 14, 1846, wrote a le tter to Mr. Bancroft, the Secretary of the Navy, inclosing a copy of the commodo res instructions to the commanders of the vessels of the Home Squadron, showing th e principles to be observed in the blockade of the Mexican ports, one of which wa s that Mexican boats engaged in fishing on any part of the coast will be allowed to pursue their labors unmolested; and that on June 10, 1846, those instructions were approved by the Navy Department. In the treaty of peace between the United States and Mexico, in 1848, were inser ted the very words of the earlier treaties with Prussia, already quoted, forbidd ing the hostile molestation or seizure in time of war of the persons, occupation s, houses, or goods of fishermen. France in the Crimean war in 1854, and in her wars with Italy in 1859 and with G ermany in 1870, by general orders, forbade her cruisers to trouble the coast fis heries, or to seize any vessel or boat engaged therein, unless naval or military operations should make it necessary. Since the English orders in council of 1806 and 1810, before quoted, in favor of fishing vessels employed in catching and bringing to market fresh fish, no inst ance has been found in which the exemption from capture of private coast fishing vessels honestly pursuing their peaceful industry has been denied by England or by any other nation. And the Empire of Japan by an ordinance promulgated at the beginning of its war with China in August, 1894, established prize courts, and ordained that the following enemys vessels are exempt from detention, including in the exemption boats engaged in coast fisheries, as well as ships engaged exclusivel y on a voyage of scientific discovery, philanthrophy, or religious mission. Wheaton observes: Without wishing to exaggerate the importance of these writers, or to substitute, in any case, their authority for the principles of reason, it may be affirmed that they are generally impartial in their judgment. They are wi tnesses of the sentiments and usages of civilized nations, and the weight of the ir testimony increases every time that their authority is invoked by statesmen, and every year that passes without the rules laid down in their works being impu gned by the avowal of contrary principles. Chancellor Kent says: In the absence of higher and more authoritative sanctions, the ordinances of foreign states, the opinions of eminent statesmen, and the wri tings of distinguished jurists, are regarded as of great consideration on questi ons not settled by conventional law. In cases where the principal jurists agree, the presumption will be very great in favor of the solidity of their maxims; an d no civilized nation that does not arrogantly set all ordinary law and justice at defiance will venture to disregard the uniform sense of the established write rs on international law. This review of the precedents and authorities on the subject appears to us abund antly to demonstrate that at the present day, by the general consent of the civi lized nations of the world, and independently of any express treaty or other pub lic act, it is an established rule of international law, founded on consideratio ns of humanity to a poor and industrious order of men, and of the mutual conveni ence of belligerent states, that coast fishing vessels, with their implements an d supplies, cargoes and crews, unarmed and honestly pursuing their peaceful call ing of catching and bringing in fresh fish, are exempt from capture as prize of war. This rule of international law is one which prize courts administering the law o

f nations are bound to take judicial notice of, and to give effect to, in the ab sence of any treaty or other public act of their own government in relation to t he matter. Holding: Yes Judgment: Ordered, that the decree of the District Court be reversed, and the pr oceeds of the sale of the vessel, together with the proceeds of any sale of her cargo, be restored to the claimant, with damages and costs. Rule: A court may look to established rules of other nations when their own nati on lacks any treaty, legislation, proclamation, or instruction that is on point for a particular matter. Where there is no treaty and no controlling executive or legislative act or judi cial 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 yea rs of labor, research, and experience have made themselves peculiarly well acqua inted with the subjects of which they treat. Dissent or Concurrence: Mr. Chief Justice Fuller, with whom concurred Mr. Justic e Harlan and Mr. Justice McKenna, dissenting: The district court held these vessels and their cargoes liable because not satisf ied that as a matter of law, without any ordinance, treaty, or proclamation, fis hing vessels of this class are exempt from seizure. This court holds otherwise, not because such exemption is to be found in any treaty, legislation, proclamati on, or instruction granting it, but on the ground that the vessels were exempt b y reason of an established rule of international law applicable to them, which i t is the duty of the court to enforce. North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark, Federal Republic of Germany/Netherlands) I.C.J. Reports 1969 Facts a. The International Court of Justice delivered judgment, by 11 votes to 6. b. Both Denmark and the Netherlands submitted an individual dispute with Germa ny to the ICJ involving claims to the North Sea Continental Shelf. These two sep arate claims were joined by the ICJ, and decided as one case. The parties sought a method by which the Continental Shelf could be fairly delimited. All parties agreed the Court was not to physically apportion claims, but merely pres cribe a method of delimitation for the parties to follow. c. Denmark and the Netherlands argued that the method of equidistance should b e implemented. This is that each State claimed all areas that are closer to itse lf than any other state. They claimed that the Geneva Convention supported this method. Moreover, it was alleged to have been an a priori rule of law, a rule o f customary international law, and a general rule of conventional practicality. d. Germany, who had not ratified the Geneva Convention, claimed that the rule of equidistance was unfair. The State also argued for an apportionment of the sh elf that was proportional to the size of each states adjacent land. Questions a. Is the Geneva Convention binding on a State that has not ratified it? b. Is the equidistance rule international law? Decisions a. The Court found that the Geneva Convention is not binding on German, as it d id not ratify it. b. While the Geneva Convention does call for the rule of equidistance, the Cour t found that the Geneva Convention was not binding upon Germany. Moreov er, the stipulations outlined in the Geneva Convention would have allowed Germa ny to opt out in this area, so its membership in the treaty is a moot point. Upon inspection of the language of both the Geneva Convention and the Truman Pro clamation, equidistance was found to be a last resort rather than an a priori ru le. Also looking to these sources, the Court rejected claims which included equi distance in customary international law. Theses texts which originally included the rule of equidistance only did so for secondary purposes, and the ut ilization of it was insufficient to prove it to be either customary internati onal law, or a general law of practicality. The Court also pointed out math ematical problems of contradiction under the rule.

The Court rejected Germanys claim of proportional apportionment because doing so would intrude upon the natural claims due to States based on natural prolongatio ns of land. Also, the Courts role was to outline a mechanism of delimitation only . The Court found, therefore, that the two parties must draw up an agreement takin g both the maximization of area and proportionality into account. These were to be based upon equitable principles. The holding here is somewhat inconclusive, but the opinion is significant to international law, regardless. Principles a. The international law elements of the case are the power of treaties, custom ary international law, and the principle of equidistance in claims to sea territ ory. b. The rule of law upheld in this case is the Geneva Convention. c. There are several principles in this case manifested in the Geneva Conventio n. The court rejected the principle of equidistance. It upheld, rather, the idea of equitable principles, which is only defined as those which maximizes land clai ms based on several cooperative factors. The Court also upholds the principle of customary international law by using the text of the Geneva Convention and its purpose to exclude the mechanism of equidistance. Conclusions The Courts ruling has a terminal impact on the principle of equidistance and its utilization through the Geneva Convention. The Court does not proscribe its use, but eliminates its legal credibility. This, of course, has no impact on the res t of the Geneva Convention. As the holding does not prescribe any specific remed y, this case does not significantly aid in any future decisions, other than for the purpose of denying the equidistance principle legal weight. If this case wer e used as precedent otherwise, it would merely direct the disputing state s to look to customary international law and cooperative action. Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States) 1986 I.C.J. 14 (June 27) The Sandinistas (Communists) took power in Nicaragua. o They began providing safe haven to communist rebels trying overthrow the US-allied government in El Salvador. The US began supplying the Contras, who were trying overthrow the Sandinistas fr om basis in Honduras and Costa Rica. o In addition, they secretly mined some harbors in Nicaragua. Nicaragua brought a suit in the International Court of Justice, claiming that th e US was illegally using force against them. The US claimed that the ICJ did not have jurisdiction. However, the ICJ found th at they did. o Under Article 36(2) of the ICJ Statute, Parties had to accept compulsory jurisdiction. o The US refused to participate, but the ICJ heard the merits of the case anyway. The ICJ found for Nicaragua. o ICJ found that use of force against another state violates Article 2(4) of the United Nations Charter, unless it can be justified as collective defense under Article 51. Collective defense only applies if the country has been the victim of an armed a ttack. o The ICJ considered the US position that they were allied with El Salvado r, and El Salvador had been subject to an armed attack because of the Nicaraguan harboring of the communist rebels. That doesn t rise to the level of an armed attack. o However, the ICJ found that the US justification of collective defense c ould not be sustained because Nicargaura s actions in supporting the communist r ebels did not amount to an armed attack on El Salvador. o The ICJ found that even if there was an armed attack, in order to come t o a country s defense, the target of the attack (El Salvador), must request assi

stance, and the third-party country (the US) must report to the UN Security Coun cil before taking actions. Neither of these things happened, so the US loses. o The ICJ found that the US: Violated the non-intervention principle by arming, equipping, and supporting the Contras. Had violated Article 2(4) by mining Nicaraguan waters. Should cease and desist and make reparations. The ICJ did not specify what would constitute an armed attack that would justify a response under Article 51? o How significant must an incursion be to count? o Nicaragua was arming militants in Honduras, but it was very low level. The ICJ also didn t address: o What a country could do when there was less than an armed attack, o Whether if a country supports one side in a civil war in a second countr y, can a third country enter and support the other side. o Whether a country could use force in anticipation of an attack. Asylum Case: Columbia v Peru 1950 ICJ Rep. 266 Case Summary. Facts Victor Raul Haya de la Torre was a Peruvian national. In Oct 3rd, 1948 one military rebellion broke out in Peru which is organized and directed by the Ame rican Peoples Revolutionary Alliance led by Haya de la Torre. The rebellion was u nsuccessful. The Peruvian Government issued a warrant for his arrest on criminal charges related to this political uprising. He fled to the Columbian embassy in Lima seeking for asylum from them. Columbia the requested permission from Peru for Haya de la Torres safe passage from the Columbian embassy, through Peru, goes to Columbia. Peru refused to give such permission. Columbia then brought this s uit against Peru in the International Court of Justice, based on the agreement m ade by both named Act of Lima. These are the submissions made by the two parties : 1) The Columbian had pleaded for the court to declare that Columbia had proper ly granted asylum based on 2 submissions:- a. They are competent to qualify the offence for the purpose of the said asylum. b. That Peru is bound to give the gu arantees necessary for the departure of the Haya de la Torre, from the country, with due regard to the inviolability of his person. 2) Counter-claim by Peru is that for the court to declare that the grant of asylum made by the Columbian Amb assador to Haya de la Torre was made in violation of the Convention on Asylum. A rgument Plaintiff (Columbian) arguments based on the Convention in force which a re the Bolivarian Agreement 1911 on Extradition, the Havana Convention 1928 on A sylum, the Montevideo Convention 1933 on Political Asylum and American Internati onal Law. The Defendant (Peru) counter-claim relied on the rules of Havana Conve ntion first, Haya de la Torre was accused, not a political offense but of a comm on crime and second, because the urgency which was required under the Havana Con vention in order to justify asylum was absent in that case. Issue 1. Whether or not Columbia is competent in granting asylum to qualify the offence as based on conventions, which in force between both countries, and in general from American international law. 2. Whether or not Peru is bound to give the guarantees neces sary for the departure of the refugees from the country, with due regard to the inviolability of his person? Decision 1) Columbia was not competent to qualify t he nature of the offence by a unilateral and definitive decision binding on Peru . 2) Columbia was not entitled to claim that the Peru was bound to gives guarant ees necessary for the departure of Haya de la Torre, with due regard to the invi olability of his person. 3) Peru counter-claim that Haya de la Torre was an accu sed of a common crime was rejected. Therefore it was not in accordance with Arti cle I, Paragraph I of the Havana convention. 4) Peru Counter-claim that the gran t of asylum by the Columbian government to Haya de la Torre Torre was made in vi olation of Article 2, Paragraph 2 of the Havana Convention was approved by the c ourt. Ratio Decidendi 1) The court reject the Columbian argument based on Boliva rian Agreement on the reason that the principle of International Law did not rec ognize any rule of unilateral and definitive qualification by the state granting diplomatic asylum. On the other hand, the Bolivarian Agreement laid down rules

on extradition and it was not possible to deduce from them conclusions concernin g diplomatic asylum as it was different in the meaning. The court also rejected the Havana Convention invoke by the Columbian as the convention did not recogniz e the right of unilateral qualification. And the third convention, Convention of Montevideo, had not been ratified by Peru and could not be invoked against it. As for the American international law, Columbia had failed to prove that it had constant and uniform practice of unilateral qualification as a right of the Stat e of refuge and an obligation upon the territorial state. The fact submitted to the court disclosed too much contradiction and fluctuation, shows that therein a usage peculiar to Latin America and accepted as law. 2) The court also rejected the Columbian claim based on Havana Convention that the Peru was bound to gives guarantees necessary for the departure of Haya de la Torre, on the reason that the convention only applicable if the territorial State demanded the departure o f the refugee from its territory. It was only after such demand that the diploma tic Agent who granted asylum could require safe-conduct. 3) Peru counter-claim t hat Haya de la Torre was an accused of a common crime was rejected on the reason that the refugee was charged for military rebellion, which was not a common cri me as needed under the Havana Convention. 4) The court came into conclusion on P eru Counter-claim that the grant of asylum by the Columbian government to Haya d e la Torre Torre was made in violation of Article 2, Paragraph 2 of the Havana C onvention was on the reason that the absent of element of urgency needed to just ify the asylum, in order to protect the person from danger. In this case the dan ger that only faced by Haya de la Torre is legal preceding that will be imposed on him, not a deprivation of his right. The Havana Convention according to the c ourt was not intended to protect a citizen who had plotted against the instituti ons of his country from regular legal proceedings. Asylum could only intervene a gainst the action of justice in cases where arbitrary action was substituted for the rule of law. Rationale 1) Before a convention can be accepted to be used as the law under Article 38 of Statute of International Court of Justice, it must be ratified by the contesting state. This has been shown by the reluctance of th e court to used certain provision in the convention as had not been ratified by the party country. Ie: see rules on Montevideo Convention. 2) The principle of I nternational Law that are not recognizing the rules of unilateral treaty. 3) Thi s decision also shows us that in order for the custom to be international custom it must be a general practice. Ie: see rules on American International Law The Fisheries Case (United Kingdom v. Norway) The Fisheries Case (United Kingdom v. Norway) was the culmination of a dispute, originating in 1933, over how large an area of water surrounding Norway was Norw egian waters (that Norway thus had exclusive fishing rights to) and how much was high seas (that the UK could thus fish). On 24 September 1949, the UK requested that the International Court of Justice d etermine how far Norways territorial claim extended to sea, and to award the UK d amages in compensation for Norwegian interference with UK fishing vessels in the disputed waters, claiming that Norways claim to such an extent of waters was aga inst international law. On 18 December 1951, the ICJ decided that Norways claims to the waters were not i nconsistent with international laws concerning the ownership of local sea-space. I. Case of the S.S. Wimbledon (PCIJ, Ser. A., No. 1, 1923) II. Facts A. The British, French, Italian, and Japanese Governments filed an application w ith the registry of the court (PCIJ) on January 16, 1923 against the German Gove rnment for refusing a steamship right of passage. The PCIJ heard and decided the case on August 17, 1923. B. On March 21, 1921, the German government refused to let the English steamship Wimbledon (chartered by a French company Les Affreteurs Reunis) pass through the Kiel Canal. The ship picked up 4,200 tons of ammunition and artillery stores in Salonica, Greece, to be brought to the Polish Naval Base at Danzig, but when the ship arrived at the entrance to the Kiel Can al it was refused passage because of the German neutrality order in accordance w

ith the Russo-Polish war. The French Ambassador in Berlin asked the Germans to a llow the S.S. Wimbledon passage, and several days later the German Government re sponded that it couldnt allow the vessel to pass because of the military cargo th at it carried. The French company then told the ship to go to Danzig via the Dan ish Straits, resulting in the cargo arriving thirteen days late- eleven for deta inment by the Germans and two for the extra time it took to go the alternate rou te. Diplomatic relations between the states did not end in a resolution, so the matter was then brought before the League of Nations and thus the Permanent Cour t of International Justice to hear the case. C. The plaintiffs in this case are the British, French, Japanese, and Italian go vernments who claim that Germany violated Articles 380 to 386 of the Treaty of V ersailles, which, among other things, states that the Kiel Canal will remain free and open to the vessels of commerce of war of all nations at peace with Germany on terms of entire equality. The plaintiffs argue that despite the cargo on the ship, the nation chartering the ship was not at war with Germany and thus should have been allowed passage. D. The defendant in this case is the government of Germany who claims that despi te the articles of the Treaty of Versailles, they were under no obligation to al low the passage of the S.S. Wimbledon because they issued a Neutrality Order for the Russo-Polish War, which would be broken by allowing weapons to be shipped to Poland. III. Questions A. Is a state allowed to refuse free passage to a vessel of another state based on the cargo that it is holding if there is a treaty demanding free passage, but another order stating neutrality from military conflict? B. Can a state be obligated to allow free passage, even if this denies the state its right to neutrality in times of war? IV. Decision The Court ruled that Germany had no right to refuse entrance to the S.S. Wimbled on on behalf of the cargo that it was carrying. In addition, the Court claimed t hat the Kiel Canal is no longer in the same category as normal internal waterway s that are ruled at the discretion of the state they are housed in, but rather i t should be considered an international waterway as laid out in the Treaty of Ve rsailles. Thus, the Kiel Canal should be open to all vessels, regardless of state, as long as that state is at peace with Germany, because the point of the canal is to provide easier access t o the Baltic. Since the Treaty of Versailles specifically said that the canal co uld deny access to states at war with Germany, it obviously was not a mistake th at it did not include the closure of the canal if Germany was neutral in a war b etween two other states. Also, the intent of the writes of the Treaty of Versail les was to have the canal be an international waterway to the Baltic. In additio n, the Court cited precedent from the Suez and Panama Canals as illustrations to the invalidity of Germanys claim. Finally, the Court dismissed Germanys claim tha t their Neutrality Order superseded the provisions of the Treaty of Versailles. V. Principles A. A key international law issue in this case is that a neutrality order issued by an individual state cannot hold more power than the provisions of an internat ional treaty of peace. B. This case asserts that the right of passage in internal waterways can become designated as not being considered internal waterways, and thus the state has li mited rights over its control, whereas the international community has a much gr eater say. C. If a states vessel is denied access to a waterway, it affects the commerce and rights of all states who may have vested interests in the area, and thus these states have the jurisdiction to bring a case against the state who is restrictin g the rights of free passage. VI. Conclusion The importance of this case lies in that it shows that despite a state having a waterway within its boundaries, it does not always have ultimate control over th e right of passage of other states vessels. This case put a limit on some state s

overeignty and gave more power to international law in that it affirmed that int ernational peace treaties hold more weight than individual Neutrality Orders of specific states. This decision showed that the PCIJ considered the Treaty of Ver sailles to be binding and not open to interpretation by individual states that s igned the treaty.