INTERNATIONAL CUSTOMS AND TRADE LAW

International Customs and Trade Law

International Customs and Trade Law

Part A)

In the given case, a Spanish person named Manolo has bought a painting from a woman during his visit to Italy. Now in doing so, he has gone through a number of customs checks and issues. If the case is analyzed, we will come to know two cardinal points.

First, every country has its own customs and trade laws and issues are dealt according to the country's rules and regulations. Besides that, the EU law concerning international trade has its domain over which certain laws and procedures are applied.

Second, the painting has antique as well as immoral. Manolo had to cope with the issue of possessing a national treasure which was obscene as well.

In the given case, International Law and Customary Laws are applicable and Manolo should have knowledge of these laws. For Manolo's information, the second source of international law described in Article 38 is 'custom as evidence of a general practice accepted as law'. Customary international law is a bit more difficult to get a handle on than treaties. With customary international law, the law is created not by what states put down in writing, but rather by what states do in practice. The notion can be explained as follows: At some point in time, states begin engaging in a particular activity for some practical reason. Then, those states that had begun engaging in that activity for practical pragmatic reasons begin to feel that that activity is obligatory, that it is required by law. It is at that point that one can conclude that there is a rule of customary international law - when there is a generalized practice that is accepted as law. Put a bit more analytically, there are two criteria for determining the existence of a rule of customary international law. First, there must be a practice. States must engage in some activity. Second, there must be a belief that the practice is required by law. In the language of law, there must be opinion juris (Blumer, 2009, 88).

Because of the very nature of customary international law, a person like Manolo seeking to determine whether a particular rule of custom exists, must carefully explore state practice. Practice can be reflected in such indicators as unilateral claims, physical acts, domestic and the international court decisions, and the writings of scholars. Unilateral claims would include national laws, executive orders, statements by prime ministers, presidents, foreign ministers, and others speaking for the state. Domestic and international courts frequently have to decide questions of international law that relate to a case before them. That is, he will have to determine whether there is indeed a common practice and whether there is a belief that the practice is required by law. At the extremes, this is an easy judgment. It would be relatively easy to determine rules that obviously are law and putative rules that are clearly not the law.

There would not be much disagreement that under ...