Much of maritime law intersects with international law. While the United States has significant maritime legislation that governs many circumstances associated with maritime and admiralty acts and transactions, there are many instances in which maritime acts or transactions are not under the jurisdiction of the United States or when courts look to international law to fill gaps in maritime law.
Therefore, it is imperative to explain certain essentials in international law.
International Law, in General
In contrast to law that governs countries, there is no international law-making body that drafts binding legislation upon its “citizens”; instead, international law is based on other devices such as treaties between states. When a state signs a treaty, such treaty is binding on the parties that signed the treaty; it is not binding on those states that did not sign the treaty. For instance, a major treaty of the late 20th century was the Rome Statute, which created the International Criminal Court, or ICC. To be subject to the jurisdiction of the ICC, states had to sign the treaty and then ratify it. The United States signed the treaty but did not ratify it. Consequently, the ICC has no jurisdiction over alleged human rights violations that occur in the United States.
In addition to treaties, which are the main body of law creating “international” law, custom plays a significant role in creating law. When people have certain customs in certain locales, such customs can be considered international law.
Going to Court
Suppose a United States District (Federal) Court is hearing a case that is based outside the United States. Assume that the District Court is the proper venue and has binding authority in that case. When deliberating, a court will look to the prevailing custom in that locale to determine international law. The facts and circumstances surrounding the “custom” will provide guidance in determining whether the custom in question is in fact a custom worthy of being evidence and what is its probative value.
Unlike treaties that are drafted, reviewed, and drafted again for clarity and have minutes of deliberations to help determine intent in creating the treaty, custom lacks that black and white blueprint. As such, when considering the merits of a custom, courts will generally have a harder time establishing evidence of a custom.
Riparian rights can be a good example of a custom in international law. Suppose a sovereign claims mineral rights to an inlet and suppose that such a claim is legitimate under international law. At the same time, the locals living near the inlet object to the idea, claiming that extracting minerals from the area will lead to pollution of the area. They have been fishing on the inlet for generations. Using sophisticated machines, they claim, will pollute the area and destroy their livelihood.
A court would likely rule in favor of the local residents. While the sovereign has mineral rights, the fishing rights would trump those rights. The mineral rights are based on an international treaty. The fishing rights are based on custom, which came first and is the rule under international law.
Involved in the maritime trade? Contact the Kolodny law firm.
Alan Kolodny is committed to representing injured clients in Texas and throughout the United States. Alan earned his B.A. from Rice University and his J.D. from Southern Methodist University.
He focuses his practice on representing plaintiffs in personal injury cases involving the following matters: maritime and offshore accidents, including those under the Jones Act; automobile and 18-wheeler truck accidents; and industrial site accidents, work-related accidents, and claims for injured railroad workers under the Federal Employers’ Liability Act.
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