il04

I. THE PAQUETE HABANA, p. 92 (US 1900)

A. The dispute: why did the U.S. confiscate these vessels? Did it make military sense? Political sense, in terms of the goals of the Spanish-American War? Or was it just an over-exuberant ship’s captain?

B. the customary international law of prize (confiscation of nonmilitary vessels of hostile power as “prizes of war”)

1. requires judicial determination of the prize claim

2. involves domestic courts applying international law

C. does CIL recognize an exception for coastal fishing vessels?

1. what does the Court look to in the way of evidence?

a) scholarly opinion – does the Court treat it in the way that art. 38 of the ICJ statute would require? Is it given too much authority?

b) practice of other states

(1) how does the Court know whether it satisfies the requirement of opinio juris? Is it enough to show that certain states have refrained from capturing coastal fishing vessels as prizes of war?

(2) suppose it is shown that a number of states have refused to follow the rule, and have subjected non-hostile fishing vessels to confiscation – does that prove that the rule doesn’t exist? How much deviation is enough to disprove the rule?

c) U.S. practice (admiral’s direction to follow IL, as well as President’s proclamation!), though not specific to this issue – what would the result have been in the Supreme Court, had there been no such proclamation or direction? If the admiral’s direction had been to ignore the international law of prize?

2. in any event rule requires that the vessels not be engaged in hostile activity

II. THE ASYLUM CASE, p. 102 (ICJ 1950)

A. What is “diplomatic asylum”?

1. How does it differ from ordinary asylum?

2. What are the obligations of the host state?

B. What kind of custom is claimed here? Does it make sense?

C. Why wouldn’t a consistent pattern of extradition treaties recognizing the concept of diplomatic asylum provide evidence of customary law?

D. What is Peru’s defense to Colombia’s claim that such a custom exists?

E. Does the existence of a “persistent objector” call into question whether there is a customary rule at all?

III. THE S.S. LOTUS, p. 100 (PCIJ 1927)

A. what is the underlying dispute, and how does it get to the PCIJ?

B. On what theory of IL did Turkey assert jurisdiction to try the French defendant?

1. That the defendant had killed Turkish nationals?

2. That he had committed homicide on Turkish territory?

3. does it matter to the outcome of the case in the PCIJ?

C. On what theory of IL did it assert jurisdiction to try the Turkish defendant?

D. customary IL: on the basis of what principle of IL did the Court decide the case?

E. Is there any rule of IL which forbids Turkey to prosecute in this case? Should there be such a rule? N.B.: such a rule was adopted in 1958 by multilateral treaty!

IV. THE TEXACO-LIBYA ARBITRATION, p. 112 (1977).

A. The tribunal and the procedure:

1. who was the arbitrator and how did he get appointed? Was this provided for by the underlying agreement, or an ad hoc solution for one party’s refusal to cooperate?

2. Why would the parties have agreed to such a procedure? Do you think it was proposed by the oil companies, or by Libya?

a) The ICJ doesn’t do arbitration

b) Many other institutions, some created by state-to-state agreement, provide arbitration services and have more expertise in arbitrations

3. given this arrangement, why did Libya refuse to participate in the arbitration (it submitted a memorandum to the President of the ICJ arguing that an arbitrator should not be appointed because the matter was non-arbitrable, but refused to participate further after the President proceeded to appoint an arbitrator)?

B. The dispute

1. what is the nature of the Companies’ claim?

2. Is it governed by international law? How does international law become part of the Arbitrator’s decision? Which party invoked a claimed rule of international law?

3. What is the nature of the claimed rule of international law? Does the Arbitrator find that it exists?

4. What sources does the Arbitrator look to in order to resolve the question?

a) What role do resolutions of the UN General Assembly play in the analysis?

b) Is it relevant to consider the votes on the resolutions? If they passed by the required majority, isn’t that all that matters?