CHAPTER 3Relationship Between International and Municipal
LawInternational 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 statesmembers 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.CUSTOMARY INTERNATIONAL LAW AND MUNICIPAL
LAWThe primary question arising concerning the relations between
customary international law and municipal law is the degree to
which rules of international law havebeen 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.
36partI The Law of Nations
chapter 3 International and Municipal Law35Anglo-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:
34
WWEST RAND CENTRAL GOLD MINING CO., LTD, v. THE KING Great
Britain, Kings Bench Div., 1905 (1905) 2 K.B. 391
FACTS 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.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 repudiation of some
particular obligations, then good faith should prevent repudiation.
But silence by the conquering state cannot be accepted as
confirmation and adoption of all liabilities of the conquered
state.(2) It is true that whatever has received the common consent
of civilized nations must have received the consent of Great
Britain, and that to which the latter had assented along with other
nations in general could properly be called international law. As
such it will be acknowledged and applied by British courts when
legitimate occasion arises for those courts to decide questions to
which doctrines of international law are relevant. But any doctrine
so invoked must be one really accepted as binding between nations,
and the international law sought to be applied must, like anything
else, be proved by satisfactory evidence. The latter must show
either that the particular proposition put forward has been
recognized and acted on by England or that it is of such a nature
and has been so widely and generally accepted that it can hardly be
supposed that any civilized state would repudiate it. The mere
opinions of jurists, however eminent or learned, that it ought to
be so recognized, are not in themselves sufficient. They must have
received the express sanction of international agreement or have
gradually grown to be a part of international law by their frequent
practical recognition in dealings among various nations.The
expression the law of nations forms a part of the law of England,
ought not to be construed so as to include as part of the law of
England opinions of textwriters upon a question as to which there
is no evidence that Great Britain has ever assented, and a fortiori
if they are contrary to the principles of her laws as declared by
her Courts.(3) The obligations of conquering states with regard to
private property, particularly land as to which the title was
perfected before conquest, are entirely different from obligations
arising out of personal contracts. Cession of territory does not
mean the confiscation of private property of individuals. The
question of the adoption by the conquering state of contractual
obligations of the conquered state toward individuals is an
entirely different matter.
More recently, Lord Atkin stated in connection with Chung Chi
Cheung v. The King (see Chapter 17) thatthe 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 inTrendtex Trading
Corporation, Ltd. v. Central Bank of Nigeria^ in 1977:Seeing that
the rules of international law have changedand do changeand 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).rule of stare decisis. If
this court today is satisfied that the rule of international law on
a subject 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.
chapter 5 International and Municipal Law31
chapter 5 International and Municipal Law31The binding force of
statutory enactments, as far as British courts are concerned, has
been laid down most forcefully in a very well known case:
| MORTENSEN v. PETERSam. 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 across from point to point.2 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 questionthat is, the location where the alleged
violation of law had taken placewas outside British territory under
international law and hence not subject to the statutes and
by-law.Peters, the Procurator-Fiscal of the Court, argued in reply
that the terms of the statutes and by-law were universal and that
even if international law were 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
regards fishing in those waters.3ISSUES (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
questionthat 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 andmade part of the law of ScotlandIt
mayprobably 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 assumptionis of course not
impossibleA Legislaturemay 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 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.
#partI The Law of Nations
chapter 3 International and Municipal Law40
chapter 3 International and Municipal Law39The 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
communitiesAlthough 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 the
branch in question.[footnoteRef:2] In the Paquete Habana
case,[footnoteRef:3] 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 [2: See 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.] [3: The Paquete Habana; The
Lola, U.S. Supreme Court 1900, 175 U.S. 677; see also the Case
Abstract below.]
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 Justice Marshall had asserted in the case
of The Nereide[footnoteRef:4] 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. In the case of Murray v.
The Charming Betsey,[footnoteRef:5] 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. [4: sThe Nereide, U.S. Supreme Court 1815, 9 Cranch 388.]
[5: Murray v. The Charming Betsey, U.S. Supreme Court 1804, 2
Cranch 64.]
TREA TIES AND DOMESTIC LA WThe 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 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 become
effective without domestic implementing legislation10 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
41partI The Law of Nations
42part I The Law of Nations
chapter 3 International and Municipal Law43Supreme Court of the
United States, 1920, 252 US. 416
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 theUnited 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.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.(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 under the Constitution in the absence of the
treaty in question.11On 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 of nations12 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 is warranted by the law of nations as understood in
this country.13It thus can be asserted that in actual American
practice, a treaty would not be considered either abrogated or
modified by subsequent legislation unless Congress clearly
indicated such an intention in the statute itself.14 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, thenSee Bischop,
104.nTalbotv. Seeman, 1801, 1 Cranch 1.13Murray v. The Charming
Betsey, 1804, 2 Cranch 64.l4See 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.courts have applied that legislation,15 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 violating the treaty or international law.16It 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. Fromagerie
Franco-Suisse le Ski, 17 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 France and the
Netherlands.18But, 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:
chapter 3 International and Municipal Law44
46part I The Law of Nations
chapter 3 International and Municipal Law45THE 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 Court,
Southern District of Florida, 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 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 stateof 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.(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 the law
ought to be, but for trustworthy evidence of what thelaw 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 navalforces, 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 READINGSThe
International/Municipal Relationship in GeneralWhiteman, 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).CASESThe 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
Greco-Bulgarian 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).4P.C.I.J.,
1927, The SS Lotus (France v. Turkey), Ser. A, No. 110, 4.7U.S.
Supreme Court 1895, 159 U.S. 113.
