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CHAPTER 3

Relationship
Between
International
and
Municipal
Law

International law is basically a system of law applicable


to states and relations be- tween states, with its rules,
whether customary or conventional, relating to all or
most of the more than 150 members of the community
of nations. Inasmuch as that community lacks a central
authority, the rules of international law can be put into
effect, that is, can be applied and enforced, only
through the governments of the individual states
members of the community. Each of the latter, however,
possesses its own constitution (or its equivalent) and its
own distinct domestic system of executive, legislative,
and judicial powers.
It is therefore necessary to analyze the relationship
between international law and the domestic (municipal)
legal systems of states. This means a threefold investigation of relations between customary international law
and municipal law, of treaty-law or conventional
international law, and of conflicts arising between provisions of international law and the constitutions and
organs (both function and authority) of domestic
governments.
1

CUSTOMARY INTERNATIONAL LAW AND MUNICIPAL


LAW

2 partI
The Law
of Nations
The
primary
question
arising concerning the relations between customary
international law and municipal law is the degree to which rules of
international law have
been incorporated/absorbed into municipal law so that they have become part of
the law of the land, with little conflict to be expected in the application or enforcement of the international law norm.
Anglo-American legal opinion has long accepted that customary international
law was part of the law of the land and was enforced, accordingly, by
domestic authorities (doctrine of incorporation). For Great Britain, this position
was laid down in a now-classic case:
W
WEST RAND CENTRAL GOLD MINING CO., LTD, v. THE KING
Great Britain, Kings Bench Div., 1905 (1905) 2 K.B. 391
The company was a British
concern operating a gold mine in the
Transvaal, South Africa. In October 1899,
a quantity of gold valued at 3,804 was
seized from the company by officials of
and by order of the South African
Republic. The company claimed that under
the laws of the Republic, the government
had to return to the owners either the
seized gold or its value. Neither action
was taken, however, as the South African
Republic was conquered in the war that
started in October 1899 and became a
part of the British Empire under the terms
of a proclamation dated September 1,
1900. The company sought to recover the
gold or its value from the British
government by a petition of right, arguing
that the government had succeeded to all
duties, rights, property, and obligations of
the defunct South African Republic by virtue of the conquest and annexation of that
republic.
ISSUES (1) Whether under international
law the sovereign of a conquering state is
liable for the obligations of a conquered
state;
(2) Whether international law forms part
of the law of Great Britain;
(3) Whether the rights and obligations
which were binding on the
conquered state had to be protected
and could be enforced by the
domestic courts of the conquering
state.
DECISION Judgment for the Crown.
FACTS

As to issue (1): The sovereign of a conquering state is free to decide which


obligations of a conquered state are to be
accepted as a liability of the conquering
state.
As to issue (2): Only such parts of
international law as have either been
accepted by Great Britain or as have been
so widely accepted that it could not be
supposed that any civilized state would
repudiate them, form a part of the law of
England.
As to issue (3): Domestic courts of a
conquering
state
cannot
exercise
jurisdiction over matters that fall properly
under the jurisdiction of the government
and that are determinable by treaty or by
act of state; rights claimed under such
matters cannot be enforced by domestic
courts of the conquering state.
REASONING (1) Passages from various
writers on international law were cited in
support of issue 1, but in many instances
their pronouncements must be regarded as
their views as to what ought to be, from
an ethical standpoint, rather than the
statement of a rale or practice so
universally approved as to constitute law
among independent nations.
The proposition that a conquering state
should assume, under international law, the
obligations of a conquered country cannot
be sustained. When making peace, the
sovereign of the conquering state is
entirely free to state to what extent he is
willing to adopt as his own the obligations
in question. If the conquering state, by
proclamation or otherwise, has promised

something that is not consistent with the


would repudiate it. The mere
repudiation of some particular obligations,
opinions of jurists, however eminent
then good faith should prevent repudiation.
or learned, that it ought to be so
But silence by the conquering state cannot
recognized, are not in themselves
chapter 3 International and Municipal
be accepted as confirmation and adoption
sufficient. They must have received
of all liabilities of the conquered state.
the express sanction of international
Law
3
(2) It is true that whatever has received
agreement or have gradually
grown
the common consent of civilized
to be a part of international law by
nations must have received the
their frequent practical recognition
consent of Great Britain, and that to
in dealings among various nations.
which the latter had assented along
The expression the law of nations
with other nations in general could forms a part of the law of England, ought
properly be called international law. not to be construed so as to include as
As such it will be acknowledged part of the law of England opinions of
and applied by British courts when textwriters upon a question as to which
legitimate occasion arises for those there is no evidence that Great Britain has
courts to decide questions to which ever assented, and a fortiori if they are
doctrines of international law are contrary to the principles of her laws as
relevant. But any doctrine so declared by her Courts.
invoked must be one really accepted
(3) The obligations of conquering states
as binding between nations, and the with
regard
to
private
property,
international law sought to be particularly land as to which the title was
applied must, like anything else, be perfected before conquest, are entirely
proved by satisfactory evidence. The different from obligations arising out of
latter must show either that the personal contracts. Cession of territory
particular proposition put forward does not mean the confiscation of private
has been recognized and acted on property of individuals. The question of
by England or that it is of such a the adoption by the conquering state of
nature and has been so widely and contractual obligations of the conquered
generally accepted that it can hardly state toward individuals is an entirely
be supposed that any civilized state different matter.

More recently, Lord Atkin stated in connection with Chung Chi Cheung v.
The King (see Chapter 17) that
the Courts acknowledge the existence of a body of rules which nations accept
among themselves. On any judicial issue they seek to ascertain what the relevant rule is, and, having found it, they will treat it as incorporated into the
domestic law, so far as it is not inconsistent with rules enacted by statutes or
finally declared by their tribunals.
The traditional theory of the absorption of international law in the domestic
law of a state, illustrated by the West Rand Central Case, has been supplanted by
the more up-to-date British theory of transformation, as expressed by Lord
Denning in
Trendtex Trading Corporation, Ltd. v. Central Bank of Nigeria^ in 1977:
Seeing that the rules of international law have changedand do change
and that the courts have given effect to the changes without any Act of
Parliament, it follows to my mind inexorably that the rules of international
law, as existing from time to time, do form part of our English law. It
follows, too, that a decision of this court, as to what was the ruling of
international law 50 or 60 years ago, is not binding on this court today.
International law knows no
*U. K, Court of Appeal, Civil Division, Jan. 13, 1977 [1977], All E.R. 881, reported in 72
AJIL 417,418 (1978).

International and Municipal


rule of stare decisis.
today is satisfied
Law If this court
that the rule of international
law on a subject 31
has
changed from what it was 50 or 60 years ago, it can
give effect to that change, and apply the change in
our English law, without waiting for the House of
Lords to do it.
The reader will have noted that the opinions handed
down in the preceding cases refer to rules of customary
international law that have either been accepted generally
or been agreed to specifically by the country in question.
Treaties that affect private property rights or that require
in their implementation a change or modification of
common law or statute must be agreed to through the
medium of an enabling act passed by a legislative body
such as Parliament. If enabling legislation were not
required, it would be possible for the Crown to legislate
for the people of England without obtaining the consent
of the governments legislative branch. At the same
time, English courts have held repeatedly that
international law is part of the common law and that the
latter must always yield to statutory law. Thus the courts
are generally bound by an Act of Parliament, even
though that act may conflict with a rule of international
law.
The binding force of statutory enactments, as far as
British courts are concerned, has been laid down most
forcefully in a very well known case:
chapter 5

|------ MORTENSEN v. PETERS

am. Great Britain, High Court of Justiciary of Scotland,


1906 (1906) 8 S.C., 5th Series, 99, 14 Scot. L.T227

FACTS Appeal from decision

of a sheriff who had imposed


a fine of 50, with the alternative of 15 days in
prison.
Mortensen,
a
Danish
citizen resident in England
and master of a trawler
registered in Norway, had
been charged with violating
the Sea Fisheries Act and
Herring Fisheries (Scotland)
Act by otter trawling in
the Moray Firth at a distance
of more than three marine

miles from the nearest land.


The statutes in question, and
a by-law enacted by the
Fishery Board in 1892,
forbade the fishing method in
question in the Moray Firth,
that body of water having a
mouth of approximately 75
miles 2 across from point to
point. Mortensen appealed,
arguing that the statutes and
by-law applied only to
British subjects or to persons
within British territory and
that the place in question

chapter 5

that is, the location where


the alleged violation ofLaw
law
had taken placewas outside British territory under
international law and hence
not subject to the statutes
and by-law.
Peters,
the
ProcuratorFiscal of the Court, argued in
reply that the terms of the
statutes and by-law were
universal and that even if

International and Municipal


international
law
were
31
applied, the offense had been
committed in British waters
and that even if the Moray
Firth were not part of British
territory for all purposes, the
British government was fully
entided
to
undertake
protective
measures
as
regards3 fishing in those
waters.

ISSUES (1) Whether a British

statute applied not only to


British subjects but also to
all other persons within
British territory;
(2) Whether the waters of
the
Moray
Firth
outside the three-mile
limit
were
British
territorial waters and
hence subject to British
jurisdiction;
(3) Whether
domestic
courts were bound by
a statute contravening
a rule of international
law.
DECISION The court ruled
unanimously
in
the
affirmative on all three issues
and
upheld
Mortensens
conviction.
REASONING (1) The wording
of the legislation in question
that is, the use of such
expressions as it shall not
be lawful, every person
who... and so onclearly
indicated that the legislature
intended, for this purpose, to
have the statutes apply
against all persons, regardless
of nationality. The purpose of
the legislation would have
been defeated if only British
fishermen
had
been
controlled and all others
would have been free to use
any method of fishing in the
area.
(2) There
were
many
instances on record in
which a given nation
legislated for waters
beyond a three-mile
limit
and
land
embraced
by
that

nation and in which


the validity of such
legislation had been
upheld by the courts.
(3) There is no such
thing as a standard of
international
law
extraneous to the domestic
law of a
kingdom, to which
appeal may be made.
International law, so
far as this Court is
concerned, is the body
of doctrine regarding
the international rights
and duties of States
which
has
been
adopted and
made part of the law of
Scotland______________It
may
probably be conceded that
there is always a certain
presumption
against
the
Legislature of a country
asserting or assuming the
existence of a territorial
jurisdiction going clearly
beyond limits established by
the common consent of
nationsthat is to say, by
international
law.
Such
assertion or assumption
is of course not impossible
_________________A
Legislature
may quite conceivably, by
oversight or even design,
exceed what an international
tribunal (if such existed)
might hold to be its international rights. Still, there
is always a presumption
against its intending to do
so.... In this Court we have
nothing to do with the
question of whether the
Legislature has or has not

partI

The Law of Nations


done what foreign powers
may consider a usurpation in
a question with them. Neither
are we a tribunal sitting to
decide whether an Act of the
Legislature is ultra vires [in
excess of authority conferred
by law and hence invalid] as
in contravention of generally
acknowledged principles of
international law. For us an
Act of Parliament duly
passed
by
Lords
and
Commons and assented to by
the King, is supreme, and we
are bound to give effect to
its terms.
POSTSCRIPT Following the
decision in Mortensen v.
Peters,
several
foreign
masters of trawlers registered
in Norway were arrested and
convicted in Scotland for the
same offense in the same
place. They were released,
however, following a series
of protests by the Norwegian

government. Norway then


issued a warning to all
trawlers registered under its
flag that no further diplomatic protection would be
extended if charges of illegal
fishing in the Moray Firth
were lodged against them,
and it also amended its own
regulations so as to make it
more difficult to register
foreign, vessels in Norway.
The British Foreign Office
in turn admitted through Mr.
Walter Runciman in the
House of Commons in 1907
that the Fisheries Acts as
interpreted in the Mortensen
case were in conflict with
international
law.
Subsequently
Parliament
enacted a statute prohibiting
the landing and selling in
Great Britain of any fish
caught by prohibited methods
in the prohibited areas in
question.

It appears necessary at this point to consider for the


last time the theory of international law. The generally
accepted view that a given states expressed willingness
to be bound by a rule of the law corresponds to consent
is still valid today, despite the logical consequence that
if a state changed its mind, it could undo its consent
and might claim to be longer bound by the rule in
question. This would, of course, dissolve the concept of
general international lawthe law would disappear in
chaotic dissolution. But it is well known that states have
been held obligated by rules to which they had not
consented expressly or by implication. This demonstrates
the contention made here, that what gives a rule its
binding force in relation to a particular state is not only
the possible consent of that state but also the fact that an
international consensus of states views the rule as a part
of a system of international legal rules and principles.
This consensus, or common consent, of the groupthe

express or tacit approval of most of the communitys


membersis what binds a particular state, especially in
the instance of customary law. No member of the group
has a right to change unilaterally the provisions of that
consensus, for the rules created by common consent can
be changed only by common consent. The Permanent
Court of International Justice expressed this view in its
judgment in the case of the S. S. Lotus:*
International law governs relations between
independent States. The rules of law binding upon
States therefore emanate from their own free will as
expressed in conventions or by usages generally
accepted as expressing principles of law and
established in order to regulate the relations between
these co-existing independent communities
Although customary international law is the law of
the land and as such is binding on all states, it should
be kept in mind that if a given government violates a
rule of that law by an executive or legislative act, the
latter domestically has priority over the rule of
customary law but internationally the state in question
has committed a delict.
In the United States, for instance, the Constitution
does not prohibit the president or Congress from
violating international customary law. Hence, American
courts will uphold acts of the political branches in
violation of customary law as long as such acts are
within the
constitutional authority of 5the branch in
4
question. In the Paquete Habana case, the Supreme
Court had noted that this rule of [customary]
international law is one which prize courts, administering
the law of nations, are bound to take judicial note of,
and to give effect to, in the absence of any treaty or
other public act of their own government in relation to
the matter. (Emphasis added.) It also quoted with
approval what has become a famous passage from
Hilton
4See Henkin, Foreign Affairs and the Constitution (1972), 221. See
also the interesting papers on May the President Violate Customary
International Law? in 80 AJIL 913 (1986) and id., 81, 377 (1987),
and Pausts dissenting The President Is Bound by International Law.
id.
5The Paquete Habana; The Lola, U.S. Supreme Court 1900, 175 U.S.
677; see also the Case Abstract below.

partI

The Law of Nations

v. GuyotP International law is part of our law, and


must be ascertained and administered by the courts of
justice of appropriate jurisdiction 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.
Similarly, Chief 6Justice Marshall had asserted in the
case of The Nereide that the Supreme Court was bound
by international law which was part of the law of the
land until a contrary act had been passed by Congress.
7
In the case of Murray v. The Charming Betsey, the
same court held that an interpretation of a congressional
act should not be such as to violate international law if
any other possible interpretation remained.

TREA TIES AND DOMESTIC LA W

The subject of treaties and domestic law relates only to


law-making treaties. A state is bound by such a treaty
by ratification of, or accession to, such an agreement. If
this consent or approval does not take place, the state in
question will not be bound by the treaty except to the
extent that general customary law is embodied in provisions of the treaty; such customary law will bind the
state even if no ratification takes place. Also binding on
a state would be the rules found in an unratified lawmaking treaty when such rules were transferred from a
treaty of this nature to which the state in question had
consented by ratification or accessionfor instance, the
substance of several 1958 law-making conventions
dealing with the law of the sea, ratified by the United
States, and now found in the 1982 Law of the Sea
convention, which is intended to replace the earlier
agreements for states ratifying the newer instrument.
Just as in the case of rules of customary law, so
rules created through lawmaking conventions (treaties)
can be rendered inoperative within a state (i.e., domestically) by executive or legislative acts of a given
government. In such a case, an international delict is
created, but the domestic courts of the country in
question will accord priority to the governmental act
over the international rule. A current example is supplied
by the refusal of Israel to honor in full the provisions of

6 The Nereide, U.S. Supreme Court 1815, 9 Cranch 388.


7Murray v. The Charming Betsey, U.S. Supreme Court 1804, 2 Cranch 64.
s

the Fourth Geneva Convention Relative to the Protection


of Civilian Persons in Time of War, of 1949. That
treaty details the rights and duties of a belligerent
occupant (Israel in the West Bank, the Gaza Strip, and
East Jerusalem). Israel has stated repeatedly that it would
honor the humanitarian provisions of the treaty, whereas
the entire instrument is generally regarded as a key
component of international humanitarian law. The Israeli
government did not adopt (incorporate) the Fourth
Geneva Convention in its domestic law, despite the fact
that it had signed and ratified the treaty. Numerous acts
of the Israeli military authorities in the occupied
territories represent, in the view of outside experts or
governments, violations of the Fourth Geneva
Convention and as such are international delicts, but
from the domestic
(Israeli) point of view the Military Orders and their execution
superseded (assumed priority over) the treaty obligations
involved. On the other hand, a signed and ratified (or acceded
to) treaty represents a binding obligation on a state, even if the
agreement is not a law-making treaty. If the treaty cannot
10
become effective without domestic implementing legislation
and the latter is absent, the obligation imposed by the treaty still
remains vis a vis other parties to the instrument.
Keeping the above in mind, it is generally true, as far as the
United States is concerned, that customary and conventional
rules of international law override earlier legislation, provided
that the rules do not violate express prohibitions contained in the
Constitution of the United States or, in the case of conventional
rules, require implementation through legislation that has not yet
been forthcoming. It has to be assumed, of course, that a treaty,
properly signed and ratified, is in accordance with the
Constitution; otherwise bad faith would have been manifested in
the act of ratification.
The separate members of a federal state are automatically
bound by the principles of international law, customary or
conventional, to which their federal government has assented or
by which it is obligated. Existing constitutional or statutory
provisions of such member states contravening the principles
binding the federal authorities are null and void in regard to
domestic effect. These concepts have been illustrated in the
American case of Missouri v. Holland:
STATE OF MISSOURI v. HOLLAND, U.S. GAME WARDEN
Supreme Court of the United States, 1920, 252 US. 416

11

partI

The Law of

Nations
FACTS Bill in equity brought by
the state of Missouri to prevent a
game warden of the United
States from attempting to enforce
the Migratory Bird Treaty Act of
July 3, 1918, and the regulations
made under that act by the
Secretary of Agriculture.
Congress had passed an act
that sought to regulate the
hunting of migratory birds by
providing closed seasons and
other forms of protection. That
act had been held by a U.S.
District Court to contravene the
provisions of the Constitution as
an invasion of the reserved
powers of the states (United
States v. Shauver, 214 F. 154;
United States v. McCullagh, 221
F. 288).
On December 8, 1916, the
President proclaimed a treaty
between the United States and
Great Britain that recited the value of migratory birds, described
their annual migrations through
parts of Canada and the
DECISION The court upheld both
the treaty and the statute.
REASONING (1) By Article 2,
section 2 of the Constitution, the
power to make treaties is
delegated specifically to the
federal government.
(2) By Article 6 of the
Constitution, treaties made
under the authority of the
United States, along with
the Constitution and laws
of the United States made
in pursuance thereof, are
declared to be the supreme
law of the land.
(3) If the treaty is valid, then
the statute implementing
the treaty is valid also.

United States, and provided for


specific closed seasons and other
forms of protection for migratory
birds. Both countries agreed that
they would make, or submit to
their
law-making
bodies,
proposals to carry out the
provisions of the treaty. In
implementation of the agreement,
Congress passed the Migratory
Bird Treaty Act of 1918,
authorizing,
among
other
provisions, the Secretary of
Agriculture to issue regulations
compatible with the terms of the
treaty. These regulations were
issued in July and October of
1918. When Holland, a United
States game warden, attempted to
enforce the federal regulations,
the state of Missouri brought a
bill in equity to prevent such
enforcement.
ISSUE Whether the treaty and
statute were void as an
interference with the rights reserved to the states under the
Constitution.
(4) The treaty in question does
not
contravene
any
prohibitive words to be
found in the Constitution.
(5) Wild birds are not in the
possession of anyone, but
possession is the beginning
of ownership. Migratory
birds travel from state to
state; hence the whole
foundation of any states
rights is the relatively
momentary presence of
birds in their boundaries.
(6) Valid treaties are binding
within the territorial limits
of the states as they are
elsewhere throughout the
United States. Although the
bulk of private relations

usually fall under the


control of the states, a
treaty may override the
power of the latter.
(7) A national interest of the
first magnitude is involved.
The states cannot be relied

on to protect that interest;


hence
the
federal
government has the right to
act, in the absence of
prohibitory wording in the
Constitution.

The decision in the Missouri case resulted in dread among


the opponents of a strong and centralized national government
that the treaty power might be utilized to circumvent the
provisions of the U.S. Constitution. In consequence, those opponents attempted, without success, to bring about passage of
the so-called Bricker Amendment. That proposal would have
permitted treaties to become effective in the domestic sphere
only through legislation that would have been valid
11 under the
Constitution in the absence of the treaty in question.
On the other hand, if statutory legislation is enacted
subsequent to assent to customary or conventional international
law, and conflicts with the latter, then American courts are
bound by the later (federal) legislation. In doubtful cases there is
a strong presumption that Congress did not intend to override
international law:
.. the laws of the United States ought not, if it be avoidable,
so be construed as to infract the common
principles and usages
12
of nations_________________________ and ... An 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 is13 warranted by the law
of nations as understood in this country.
It thus can be asserted that in actual American practice, a
treaty would not be considered either abrogated or modified by
subsequent legislation unless 14Congress clearly indicated such an
intention in the statute itself. When Congress has, on occasion,
decided that the United States should violate a treaty or a rule
of international law by deliberately enacting legislation in
conflict with such obligations, the
See Bischop, 104.
Talbotv. Seeman, 1801, 1 Cranch 1.
Murray v. The Charming Betsey, 1804, 2 Cranch 64.
See Cook v. United States, 1939, 288 U.S. 102, for a detailed analysis of
this matter by the Supreme Court; see also McCullough v. Sociedad de
Marineros, 1963, 372 U.S. 10, 21-22.
n
n
13
l4

13

partI

The Law of

15
Nations
courts have applied that legislation, provided it fell within the
constitutional powers of Congress, in view of the fact that the
Constitution does not forbid Congress to disregard or to violate
international law. On the other hand, such legislation would
cause the U.S. government to be responsible
to other states for
16
violating the treaty or international law.
It must also be assumed that a widely recognized rule of
customary international law provides that a rule of municipal
law adopted subsequent to a treaty and that conflicts with the
provisions of the earlier treaty cannot alter the provisions of the
treaty in international law. Article 27 of the 1969 Vienna
Convention on the Law of Treaties states that a party may not
invoke the provisions of its internal law as justification for its
failure to perform a treaty. Even before 1969, the customary
law rule had received judicial support in a surprising number of
municipal court decisions. Thus, in Librairie Hachette S.A. v.
Societe Cooperative, the Swiss Civil Court of Geneva held that
the Swiss federal law on cartels of 1962 was superseded by the
Franco-Swiss Convention on Jurisdiction and Execution of
Judgments of 1869. More recently the Supreme Court of
Belgium, in the important decision
in Etat Beige v. S.A.
17
Fromagerie Franco-Suisse le Ski, held that a treaty does not
void the conflicting internal law of a party to that treaty but
suspends operation of that law as to any areas of conflict with
the treaty; that is, when a domestic law conflicts with a rule of
international treaty law that has direct effect within the domestic
(municipal) legal order, the treaty prevails, because of the very
nature of international treaty law. The rule has even been
recognized in some national
constitutions, such as those of
18
France and the Netherlands.
But, when a state has failed to adopt by treaty, legislation,
or other public act a policy contrary to a rule of international
law previously assented to by that state, then the courts under
the latters jurisdiction are bound to accept, or at least to take
judicial notice of, that rule. This principle has been elucidated
most clearly by the Supreme Court of the United States in a
classic decision:

THE PAQUETE HABANA; THE LOLA


Supreme Court of the United States, 1900,
115 U.S. 611

FACTS Two appeals from decrees

at

the

U.S.

District

Southern District of Florida,


Court, condemning two fishing vessels

and their cargoes as prizes of


war.
Each vessel, operating out of
Havana, was regularly engaged in
Cuban coastal waters, sailed
under the Spanish flag, and was
owned by a Spanish subject of
of war existed between Spain and
the United States or that a
blockade of Spanish ports had
been proclaimed by the United
States.
Both vessels were brought to
Key West and condemned in the
U.S. District Court, with a decree
of sale of both vessels and
cargoes.
ISSUE Whether unarmed coastal
fishing vessels of one belligerent
are subject to capture by vessels
of another belligerent.
DECISION (1) Unarmed coastal
fishing vessels are exempt from
seizure by a belligerent.
(2) Decree of District Court
reversed, proceeds of the sale of
vessels and cargoes to be restored
to the claimants, with damages
and costs.
REASONING (1) By an ancient
usage among civilized nations,
beginning centuries ago and
gradually ripening into a rule of
international law, coastal fishing
vessels pursuing their vocation
have been recognized as exempt,
with their cargoes and crews,
from capture. This usage can be
traced by means of documents
back as far as a.d. 1403 in England.
Subsequent
evidence
indicates that France and other
countries followed the same
usage.
Eminent
writers on
international law have indicated
through the past few centuries
that the usage became general in
scope.

Cuban birth, living in Havana.


The cargo, when the vessels were
seized, consisted of fresh fish.
Apparently neither captain had
any knowledge, until the vessels
were captured, that a state

(2) The
United
States
recognized the immunity of
coastal fishing vessels as
far back as the Mexican
War of 1846.
(3) In most recent times,
numerous states issued
specific orders to naval
commanders
concerning
fishing vessels, recognizing
their
exemption
from
seizure unless military operations should make it
necessary.
(4) International law is part
of our law, and must be
ascertained
and
administered by 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

15

partI

Nations

The Law of

the law ought to be, but


for trustworthy evidence of
what the
law really is [Hilton v. Guyot,
159 U.S.

131].

(5) ... at the present day, by


the general consent of the
civilized nations of the
world, and independently
of any express treaty or
other public act, it is an
established
rule
of
international law, founded
on
considerations
of
humanity to a poor and
industrious order of men,
and
of
the
mutual
convenience of belligerent
States, that coast fishing

vessels,
with
their
implements and supplies,
cargoes
and
crews,
unarmed
and
honestly
pursuing their peaceful
calling of catching and
bringing in fresh fish, are
exempt from capture as
prize of war.
(6) This rule of international
law is one which prize
courts, administering the
law of nations, are bound
to take judicial notice of,
and to give effect to, in the
absence of any treaty or
other public act of their
own government in relation
to the matter.

It should be noted that the rule discussed in the preceding


decision is no longer observed by leading maritime powers in
time of war, even though it was affirmed as late as 1907 in
Hague Convention No. XI. The establishment of tight blockades
of enemy coasts during both world wars with the avowed
intention of cutting off all food supplies from the enemy state,
together with repeated clear evidence that ostensible fishing
vessels have acted as the eyes and ears of their naval
forces, led to the issue of administrative regulations by
virtually all naval powers that had the public act
character required to set aside the effective application of
the rule laid down in the case of The Paquete Habana.
In summary, using the United States as a typical
example: Should Congress enact legislation inconsistent
with prior treaty obligations, a U.S. court will apply and
enforce that legislation. The general concept of the
incorporation of international law into the law of the
land, found originally only in the Anglo-Saxon
countries, has spread in modern times into many other
parts of the world. Courts of numerous countries
(Belgium, France, and Switzerland, to name but a few)
have sustained the doctrine.
The assent of states, which has been mentioned
repeatedly, should not be overestimated in connection
with the doctrine of incorporation. The practice of states

indicates clearly that express assent, particularly in the


form of legislation or executive acknowledgment, is
often lacking. Customarily accepted rules and principles
of international law, as distinct from conventional law
arising out of specific law-making treaties, must be
regarded as part of the law of the land and do not
require express assent in order to become such a part.
Interestingly, the constitution of the Netherlands provides
specifically for an absolute supremacy of treaties over
domestic law but does not apply this principle to the
rules of customary international law.
SUGGESTED READINGS

The International/Municipal Relationship in General


Whiteman, I, 103; Falk, The Role of Domestic Courts in the
International Legal Order (1964); Bishop, 71; Deener,

International Law Provisions in Post-World War II


Constitutions, 36 Cornell L. Q. (1951), 505; Lauterpachts
Oppenheim, I, 35-47; Brierly (6th ed.), 94; Charney, The
Power of the Executive Branch of the United States
Government to Violate Customary International Law, 80
AJIL 913 (1986); Henkin, The President and International
Law, id., 930; Glennon, Raising The Paquete Habana: Is
Violation of Customary International Law by the Executive
Unconstitutional?, 80 NW. U. L. Rev. 322 (1985); Kirgis,
Federal Statutes, Executive Orders and Self-Executing
Custom, 81 AJIL 371 (1987); M. Leigh, Is the President
Above Customary International Law? 86 AJIL 757 (1992).
CASES

The Scotia, 1871, 14 Wallace 170.


Certain German Interests in Polish Upper Silesia, P.C.I.J.,
1926, Ser. A. No. 7.
Exchange of Greek and Turkish Populations, Advisory
Opinion, P.C.I.J., 1925, Ser. B. No. 10. The GrecoBulgarian Communities, Advisory Opinion, P.C.I.J.,
1930, Ser. B. No. 17. Treatment of Polish Nationals in
Danzig, Advisory Opinion, P.C.I.J., 1932, Ser. B. No. 44.
In re Aircrash in Bali, Indonesia on April 22, 1974, U.S.
Court of Appeals, 9th Cir., Aug. 24, 1982, 684 F. 2d
1301, reported in 77 AJIL 153 (1983).

P.C.I.J., 1927,
The SS Lotus (France v. Turkey), Ser. A, No. 110, 4.
7
U.S. Supreme Court 1895, 159 U.S. 113.

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