The Paquete Habana case brief

The Paquete Habana, 175 US 677 (1900).

• Ancient practice that fishing vessels pursuing their vocation are exempt from capture as a prize of war.  Here, the US captured two Spanish fishing vessels as a prize of war.  
• How did customary international law arise in this case?
• The outcome of the case turned on the enforcement (or non-enforcement) of customary law prohibiting the capture of fishing vessels.
• The court concluded that:
• The above practice had become customary international law
• Thus the court demonstrated that customary international law can provide the controlling rule of a decision in some cases in US courts
• “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.”
• WHAT to get out of the case: there is a vagary in the case, that is important: there are two interpretations of this case:
• 1) Customary international law is subordinate to self-executing treaties and acts of congress (only binding in the absence of a treaty, an act of congress or the executive, etc.)
• 2) Customary international law is on the same level as self-executing treaties and congressional acts, and therefore the later-in-time rule applies