(including Grotius, Bynkershoek and Bacon),charges to juries by English judges, and the practice of states in punishing all persons committing the offense A few comments on Smith. First, it should be remembered that there were no international courts in 1820; the courts reference to "judicial decisions" thus necessarily referred to decisions of domestic courts. Second, in context, judicial decisions were a form of state practice; the question, after all, was how"piracy was defined, and one type of circumstance in which states would necessarily engage in practice on the subject would have been court proceedings against alleged pirates. Finally, it must be stressed in this case that all of the sources on which the court relied in smith were consistent with one another this was not a situation, in other words, in which state practice on a subject differed from jurists'opinions as to the proper interpretation of the law. Indeed, it seems doubtful that there was at that time much controversy as to the proper definition of piracy in international law The Supreme Courts next discussion of the method of determining the content of CiL came in The Paquete Habana. 29 This famous case arose when, during the american blockade of Cuba during the Spanish-American War, United States naval vessels captured two small coastal fishing boats operating out of Havana. The captured boats were adjudged by a lower federal court, sitting in admiralty, to be prizes of war; they were sold, and the subsequent appeal concerned the disposition of the sale proceeds. The original owners sought to recover the roceeds, arguing that small coastal fishing vessels could not lawfully be treated as prizes of war 27 Id at 161 and 163. note a ldat162-63 29 The Paquete Habana, 175 U.S. 677(1900)
14 27 Id. at 161 and 163, note a. 28 Id. at 162-63. 29 The Paquete Habana, 175 U.S. 677 (1900). (including Grotius, Bynkershoek and Bacon),27 charges to juries by English judges, and the practice of states in punishing all persons committing the offense.28 A few comments on Smith. First, it should be remembered that there were no international courts in 1820; the court’s reference to “judicial decisions” thus necessarily referred to decisions of domestic courts. Second, in context, judicial decisions were a form of state practice; the question, after all, was how “piracy” was defined, and one type of circumstance in which states would necessarily engage in practice on the subject would have been court proceedings against alleged pirates. Finally, it must be stressed in this case that all of the sources on which the court relied in Smith were consistent with one another; this was not a situation, in other words, in which state practice on a subject differed from jurists’ opinions as to the proper interpretation of the law. Indeed, it seems doubtful that there was at that time much controversy as to the proper definition of piracy in international law. The Supreme Court’s next discussion of the method of determining the content of CIL came in The Paquete Habana. 29 This famous case arose when, during the American blockade of Cuba during the Spanish-American War, United States naval vessels captured two small coastal fishing boats operating out of Havana. The captured boats were adjudged by a lower federal court, sitting in admiralty, to be prizes of war; they were sold, and the subsequent appeal concerned the disposition of the sale proceeds. The original owners sought to recover the proceeds, arguing that small coastal fishing vessels could not lawfully be treated as prizes of war
under Cils. In addressing this argument, the court was obliged to explain how it determined the content of CIL on this subject. The court stated 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 the law The court then provided a 1 4 page review of state practice, followed by an page discussion of the views of prominent writers, concluding that, as a matter of international law, ressels of the type in issue could not lawfully be taken as prizes There are several points to emphasize about this case. First, the heart of the courts opinion as to the content of international law was its recital of state practice. It appears that writers were quoted primarily to demonstrate the correctness of the court's narrative. The language quoted above reinforces this conclusion. Jurists and commentators, according to the court, serve the function of providing evidence of the customs and usages of nations, being able to do so because of their knowledge of their subject. In other words, writers are important in addressing matters of international law not because their views as to what the law should be carry any weight, but because they provide a convenient catalog of the crucial element of the analysis, that is, state practice 30l.at678-79.686 31 Id. at 700 l.at686-700,701-708
15 30 Id. at 678-79, 686. 31 Id. at 700. 32 Id. at 686-700, 701-708. under CIL30. In addressing this argument, the court was obliged to explain how it determined the content of CIL on this subject. The court stated: 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 the law really is.31 The court then provided a 14 page review of state practice, followed by an 8 page discussion of the views of prominent writers,32 concluding that, as a matter of international law, vessels of the type in issue could not lawfully be taken as prizes. There are several points to emphasize about this case. First, the heart of the court’s opinion as to the content of international law was its recital of state practice. It appears that writers were quoted primarily to demonstrate the correctness of the court’s narrative. The language quoted above reinforces this conclusion. Jurists and commentators, according to the court, serve the function of providing evidence of the customs and usages of nations, being able to do so because of their knowledge of their subject. In other words, writers are important in addressing matters of international law, not because their views as to what the law should be carry any weight, but because they provide a convenient catalog of the crucial element of the analysis, that is, state practice
Second, it seems that the method of determining the content of CIl employed in The Paquete Habana is consistent with that employed in Smith. To be sure, the later case stressed that the works of publicists were relied upon only as evidence of state practice, while the earlier case appears to treat scholarly opinion and state practice as equally authoritative sources of law. But the Smith court was not faced with any divergence between the parties regarding the weight to be given to the opinions of writers in determining the content of Cil ( though the parties did disagree as to the substance of scholarly opinion). 3 It was not, therefore, obliged to address the question of the relative importance of the writers' views in determining the content of CIL. In contrast, in Paquete Habana, appellants took the position that the writings of publicists weighed equally with the practice of states in determining the relevant rule of CIL. 34 The captors of the essels in question, however, asserted that the views of writers were entitled to no weight in the matter.3The United States, arguing for the legality of the capture, asserted as follows Reference has been made in the brief to the fact that the writers on international law, and especially the continental writers, are far in advance of the law as determined by legislation or decisions, or by the plain consensus of agreement on the part of the nations, and that they indulge in speculations which are not justified. We are contending that the court will regard principles fairly settled, but will not be influenced by hypothetical views or considerations of what he law ought to be or may be in the future rather than what it is It would appear therefore that the language from the court's opinion quoted above was in response to disagreement among the parties as to the weight to be given to the opinions of United States v Smith, 18 U.S.(5 Wheat )153, 157-58(1820) 34 Paquete Habana, supra n 29, Brief for Appellants at 8-10 Id, Brief for Captors at 7-8 Id. Brief for the United States at 19
16 33 United States v. Smith, 18 U.S. ( 5 Wheat.) 153, 157-58 (1820). 34 Paquete Habana, supra n. 29, Brief for Appellants at 8-10. 35 Id., Brief for Captors at 7-8. 36 Id., Brief for the United States at 19. Second, it seems that the method of determining the content of CIL employed in The Paquete Habana is consistent with that employed in Smith. To be sure, the later case stressed that the works of publicists were relied upon only as evidence of state practice, while the earlier case appears to treat scholarly opinion and state practice as equally authoritative sources of law. But the Smith court was not faced with any divergence between the parties regarding the weight to be given to the opinions of writers in determining the content of CIL (though the parties did disagree as to the substance of scholarly opinion).33 It was not, therefore, obliged to address the question of the relative importance of the writers’ views in determining the content of CIL. In contrast, in Paquete Habana, appellants took the position that the writings of publicists weighed equally with the practice of states in determining the relevant rule of CIL.34 The captors of the vessels in question, however, asserted that the views of writers were entitled to no weight in the matter.35 The United States, arguing for the legality of the capture, asserted as follows: Reference has been made in the brief to the fact that the writers on international law, and especially the continental writers, are far in advance of the law as determined by legislation or decisions, or by the plain consensus of agreement on the part of the nations, and that they indulge in speculations which are not justified. We are contending that the court will regard principles fairly settled, but will not be influenced by hypothetical views or considerations of what the law ought to be or may be in the future rather than what it is.36 It would appear therefore that the language from the court’s opinion quoted above was in response to disagreement among the parties as to the weight to be given to the opinions of
writers. In essence, the court split the difference-writers' opinions will be given weight, says the court, not as sources equivalent to the practice of states in determining the content of law,but because they describe that practice Finally, and most important, it seems that the approach taken in Paquete Habana t determining the content of Cil fits easily with the nature of that body of law as discussed above 7 That is. it insisted that the source of international law was"custom" that is actual practice which, it could reasonably be assumed, would be followed in the future. American courts therefore have two reasons for focusing on the actual practice of states in determining the content of CIL. First, such an approach best comports with the nature of that body of law Second, the Supreme Court has held that approach to be correct Ill. Current American Approaches to Determining the Content of Customary International Law In order to provide an example of the problem this article seeks to address, the following discussion will recount the approach American federal courts of appeals have taken to a particular international legal problem: dealing with the concept ofus cogens. The discussion will first explain that concept and spell out some of the difficulties it presents, and then describe the treatment that courts have given it A. The Concept of Jus Cogens There is authority for the proposition that there is a class of rules of international law from which states are not permitted to derogate. 3 The term jus cogens is applied to this class of 37 See discussion at pp 3-11, supra 38 See, e. g, Vienna Convention on the Law of Treaties, May 23, 1969, art. 53, 1155 U.N.T.S. 331, 344; 8I.L. M. 679, 698-99(1969)(hereinafter Vienna Convention
17 37 See discussion at pp. 3-11, supra. 38 See, e.g., Vienna Convention on the Law of Treaties, May 23, 1969, art. 53, 1155 U.N.T.S. 331, 344; 8 I.L.M. 679, 698-99 (1969) (hereinafter Vienna Convention). writers. In essence, the court split the difference - writers’ opinions will be given weight, says the court, not as sources equivalent to the practice of states in determining the content of law, but because they describe that practice. Finally, and most important, it seems that the approach taken in Paquete Habana to determining the content of CIL fits easily with the nature of that body of law as discussed above.37 That is, it insisted that the source of international law was “custom”, that is, actual practice which, it could reasonably be assumed, would be followed in the future. American courts therefore have two reasons for focusing on the actual practice of states in determining the content of CIL. First, such an approach best comports with the nature of that body of law. Second, the Supreme Court has held that approach to be correct. III. Current American Approaches to Determining the Content of Customary International Law In order to provide an example of the problem this article seeks to address, the following discussion will recount the approach American federal courts of appeals have taken to a particular international legal problem: dealing with the concept of jus cogens. The discussion will first explain that concept and spell out some of the difficulties it presents, and then describe the treatment that courts have given it. A. The Concept of Jus Cogens There is authority for the proposition that there is a class of rules of international law from which states are not permitted to derogate.38 The term jus cogens is applied to this class of
rules. The idea that such a class raises a number of problems. One way to evaluate the current approach taken by american courts to Cil is to examine the approach taken by the courts in addressing these problems. This section of the article provides some background on the subject; the sections following described and critique the decisions of the federal appellate courts dealing with jus cogens One difficulty is basic: what reason is there for an American court to accept the existence of such a category of rules? To be sure, the concept is expressly embodied in the vienna Convention on the Law of Treaties, (Vienna Convention")but the United States is not a party to that treaty. Further, only 91 other states are parties; by comparison, there are 189 states are members of the United Nations +I That is. fewer than half the states in the world have bound themselves to the Vienna Convention, and thus to a treaty obligation to accept the jus cogens concept. If American courts are to treat the concept as a part of international law, then, they must justify their action by relying on some source of law other than either a treaty obligation of the United States or near universal acceptance by states through a multilateral trea One might hope to gain some insight into the legal basis for jus cogens by examining the history of the idea, unfortunately, that inquiry only complicates the question. The proposition that such a class of norms existed began to receive systematic attention from scholars of international law following World War I. Initially, it was discussed in connection with the law CONGRESSIONAL RESEARCH SERVICE. LIBRARY OF CONGRESS. TREATIES AND OTHER INTERNATIONAL AGREEMENTS: THE ROLE OF THE UNITED STATES SENATE 43 n 2(Sen Comm Print 106-71, 106 Cong, 2d Sess. 2001)(hereinafter cited as ROLE OF THE SENATE) THE STATESMANS YEARBOOK: THE POLITICS. CULTURES AND ECONOMIES OF THE WORLD 2002 6(Barry Turner ed 2001)
18 39 Id. 40 CONGRESSIONAL RESEARCH SERVICE, LIBRARY OF CONGRESS, TREATIES AND OTHER INTERNATIONAL AGREEMENTS: THE ROLE OF THE UNITED STATES SENATE 43 n. 2 (Sen. Comm. Print 106-71, 106th Cong., 2d Sess. 2001) (hereinafter cited as ROLE OF THE SENATE). 41 THE STATESMAN’S YEARBOOK: THE POLITICS, CULTURES AND ECONOMIES OF THE WORLD 2002 6 (Barry Turner ed. 2001). rules. The idea that such a class raises a number of problems. One way to evaluate the current approach taken by American courts to CIL is to examine the approach taken by the courts in addressing these problems. This section of the article provides some background on the subject; the sections following described and critique the decisions of the federal appellate courts dealing with jus cogens. One difficulty is basic: what reason is there for an American court to accept the existence of such a category of rules? To be sure, the concept is expressly embodied in the Vienna Convention on the Law of Treaties,39 (“Vienna Convention”) but the United States is not a party to that treaty. Further, only 91 other states are parties;40 by comparison, there are 189 states are members of the United Nations.41 That is, fewer than half the states in the world have bound themselves to the Vienna Convention, and thus to a treaty obligation to accept the jus cogens concept. If American courts are to treat the concept as a part of international law, then, they must justify their action by relying on some source of law other than either a treaty obligation of the United States or near universal acceptance by states through a multilateral treaty. One might hope to gain some insight into the legal basis for jus cogens by examining the history of the idea; unfortunately, that inquiry only complicates the question. The proposition that such a class of norms existed began to receive systematic attention from scholars of international law following World War I. Initially, it was discussed in connection with the law