Customary international law can be defined as the rules of law which have been derived from the conduct of states whose actions are out of belief that the law requires them to act in that manner. Customary international law is established through repetition of international acts which occur out of a sense of obligation and the acts are accepted by other states. Treaties also represent a codification of rules of customary international law for example the 1961 Vienna Convention on Diplomatic Relations, the Geneva Conventions among others. A rule of Customary International Law is that parties ought to act in good faith when observing the law.
Article 38(1)(b) of the Statute of the International Court of Justice recognizes Customary International Law describing it “as evidence of a general practice accepted by law”. For a better understanding of the happenings between Astor and Mapheth it is important to analyse the elements of custom, it has to be consistent regular and respected there is no particular duration required. The custom ought to be uniform and general as illustrated by the Assylum Case (Colombia v Peru) (1950) ICJ Rep.266, where the court observed that there was fluctuation in the exercise of diplomatic immunity and so many inconsistencies that it was impossible to discern a constant and uniform usage accepted as law. The psychology element of custom should also be put into consideration (Opinio juris et necessitates), the practice is required to be consistent with the prevailing international law. It is also possible for a state to opt out of a custom using the principle of persistent objector, the objection of a custom should be clear so that there cannot be a presumption of acceptance. In case of a conflict between international law and Municipal law the Municipal Law will prevail.
The law that will govern the case between Astor and Mapheth is the Statute of the International Court of Justice the United Nations Convention on the Law of the sea and judgements of international courts and tribunals.
The general rule is that a ship in the high seas is subject to exclusive jurisdiction of that state, thus the principle of freedom of navigation on the high seas found in Article 87 of the Law of The Sea Treaty. The United Nations Charter under Article 2(4) provides a general provision for states to refrain from war, however there is an exception which is the right to self-defense as seen under Article 51 of the charter,it can therefore be argued that since there was a war it was prudent for Astor’s fishing vessels to be seized.
A case that closely relates to this case is that of The Paquete Habana where to court had to determine whether it was legal under international law for a Spanish vessel to be seized as a price of war during the Spanish-America War, the court relied on jurists and ancient usage of treaties to allow the seizure. The question that should therefore be answered is whether the elements of what amounts to custom has been met by Maspeth when seizing Astor’s fishing vessels.
It is evident that both states were engaged in armed conflict and that they share a similar coastline which is along Antek Ocean. The draft UN treaty allowed seizure of vessels within a 15mile radius however, the haquete was seized in the high seas which is contrary to the treaty, even though the treaty was a draft it shows intention to enter into legal relations and binds the states.
It is also evident that the neighbouring states see this as common general practice which is accepted, however Astor does not support the practice putting into play the persistent objector principle since they opted out of the custom. From the analysis above it is safe to conclude that Maspeth acted in bad faith when seizing Astor’s ship because they objected to the custom. Maspeth also violated customary international law by seizing ship that was in the high seas which is open to all states and Astor had exclusive flag state jurisdiction, and freedom of navigation of the high seas.