US v. Smith case brief

US v. Smith (S Ct 1820, p. 133)

• Piracy Case: TS crewed a private ship but seized another vessel and robbed/plundered it. There was a special verdict in the case: if plunder and robbery are piracy under US law, then prisoner was guilty.
• Holding: Robbery and Plunder are party of piracy as defined by the law of nations.
• Like in Paquete, statute incorp crime already recognized in intl law. p. 134.
• Justice Storey looks to common law, justices, and state practice to find rules w/ respect to privacy in intl law.
• Storey doesn’t really demonstrate custom, he is more basing it on fundamental principles.
• Where do you look for evidence of natural law? It is self-evident—accept norms as axiomatic—can really only look at opinio juris then. It is enough b/c consent is not needed for fundamental norms (so no need to be a custom). Like Filartigathere is an appeal to higher concept.
• Erga omnes w/ discrimination, slavery, etc. Danger of this: possibility of all sorts of judges throwing in their opinions. When it takes 10/20 yrs to create a treaty you run the risk of not being able to correct an out-of-control judge.