-During the Spanish American War, the United States Navy boarded two private fishing vessels that were flying the Spanish flag, and captured them both as prizes of war. One of which was the Paquete Habana.
-The owners of the vessels sued in US courts to regain their property.
-Argument: customary international law states that fishing vessels are exempt from being captured in war.
-They were commercial fishermen and not a military target.
-The US Supreme Court found that the fishing vessels can not be taken as prizes of war.
The US Supreme Court found that there was no specific US law defining a prize of war.
However, the Court stated that customary international law made fishing vessels exempt from being taken as a prize of war.
There are a number of factors that will determine if something is customary international law. In this case, the Court found that:
There was State practice by a number of different countries that commercial fishing vessels were exempt.
There was repetition of this practice over a period of time.
There was opinio juris that commercial fishing vessels were exempt.
Opinio juris = a subjective element that is used to judge whether the practice of a state is due to a belief that it is legally obliged to do a particular act.
This case lays out the important factors that courts use to determine if something has become customary international law.
Customary international law can be thought of as a kind of international common law. It is not explicitly defined anywhere, however everyone seems to agree with it.
One quote from the case that I really liked was: For the 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 acquaintedwith the subjects of which they treat. (The Paquete Habana, 175 U.S. 677 1900). Good stuff!
I have often tried to make the cases available as links in case you are a student without a textbook.
All the information on this site is constantly updated and edited. Furthermore, if you have any outlines you want to share, so that others, free of charge, may benefit, please send those to be posted here. Likewise, if you have case briefs you would like to share, please send them to [email protected].
Please keep in mind that this site makes no warranties as to the accuracy of the cases listed here or the current status of law. These cases are derived from class notes and laws change over time. If you have any questions about these materials, or any other legal questions, you should consult an attorney who is a member of the bar of the state you reside in.