Please illustrate using Paquete Habana, found at DRW pp. 82-85, and related readings.
In the case of the Paquete Habana, the U.S. Navy captured two fishing vessels (the Paquete Habana and the Lola) during the Spanish-American War, both of which were sailing under the Spanish flag in and out of Havana while there was a blockade in effect. The Paquete’s crew was unaware of the blockade. Both ships were taken to Florida and sold at auction after a district court ruled that they were not “exempt from seizure.” (DRW, p. 82) The case was appealed and heard by the U.S. Supreme Court. One of the issues in the case was whether, if a rule is not codified in U.S. law but is a generally accepted practice and/or law for other nations, does that practice/law …show more content…
law. Justice Gray notes that “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” – so absent a domestic law or treaty, states should adhere to customary international law. Customary international law forms, as Justice Gray writes, by a “ripening” of an “ancient usage among civilized nations.” (DRW, p. 85) This ripening can happen over hundreds of years, or a shorter period of time, if the adherence is extensive or uniform, but once formed, it must be followed by nations. In the case of the Paqueta, the Court found that barring the capture of fishing vessels during wartime was customary international law, formed by an international history of adherence to the rule, as well as nations’ …show more content…
(DRW, p. 473) The wearing of the headscarf, the court previously found, had a “prostelytising effect” that was “hard to reconcile with the principle of gender equality,” and constituted a threat to the rights of others. (DRW, p. 473) Because extremist political movements existed in Turkey and are intent on imposing “their religious symbols and conceptions of a society founded on a religious precept,” the wearing of religious symbols was a threat to pluralism, and therefore to the state. (DRW, p. 474) The upholding of the principle of secularism may be necessary to protect the democratic system in Turkey, and as such, any threat to that principle (like the wearing of religious symbols like the headscarf) threatens Turkish
In the case of the Paquete Habana, the U.S. Navy captured two fishing vessels (the Paquete Habana and the Lola) during the Spanish-American War, both of which were sailing under the Spanish flag in and out of Havana while there was a blockade in effect. The Paquete’s crew was unaware of the blockade. Both ships were taken to Florida and sold at auction after a district court ruled that they were not “exempt from seizure.” (DRW, p. 82) The case was appealed and heard by the U.S. Supreme Court. One of the issues in the case was whether, if a rule is not codified in U.S. law but is a generally accepted practice and/or law for other nations, does that practice/law …show more content…
law. Justice Gray notes that “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” – so absent a domestic law or treaty, states should adhere to customary international law. Customary international law forms, as Justice Gray writes, by a “ripening” of an “ancient usage among civilized nations.” (DRW, p. 85) This ripening can happen over hundreds of years, or a shorter period of time, if the adherence is extensive or uniform, but once formed, it must be followed by nations. In the case of the Paqueta, the Court found that barring the capture of fishing vessels during wartime was customary international law, formed by an international history of adherence to the rule, as well as nations’ …show more content…
(DRW, p. 473) The wearing of the headscarf, the court previously found, had a “prostelytising effect” that was “hard to reconcile with the principle of gender equality,” and constituted a threat to the rights of others. (DRW, p. 473) Because extremist political movements existed in Turkey and are intent on imposing “their religious symbols and conceptions of a society founded on a religious precept,” the wearing of religious symbols was a threat to pluralism, and therefore to the state. (DRW, p. 474) The upholding of the principle of secularism may be necessary to protect the democratic system in Turkey, and as such, any threat to that principle (like the wearing of religious symbols like the headscarf) threatens Turkish