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SOUTH TEXAS COLLEGE OF LAW
AND THE BUSH SCHOOL
R. J. GRAVING, PROFESSOR
2001 SPRING SEMESTER
TUESDAY, MAY 8, 2001
INTERNATIONAL LAW
OPEN BOOK AND MATERIALS
PROBLEM I
Respond to the following with consummate brevity and utmost accuracy:
1. If a coastal State has asserted national jurisdiction seaward to the maximum extent permitted under the 1982 UNCLOS,
what, in terms of nautical miles, is the closest to the coastal baselines that the Area can reach?
2. What international law phenomenon does the term lex lata describe?
3. Under what circumstances may a putative party ratifying or acceding to a treaty enter a reservation?
4. In what circumstances may the doctrine of double criminality operate?
5. In what instrument is the Connally Reservation to be found and what did the reservation provide?
6. What was the claimed legal basis for the 1976 Israeli raid and rescue at Entebbe, Uganda?
7. Name two members of the International Court of justice, past or present.
8. In what circumstances might a State invoke the notion embodied in the phrase clausula rebus sic stantibus?
9. What was the claimed legal basis for the blockade ("quarantine") of Cuba during the 1962 Cuban Missile Crisis?
10. With what series of conventions is "Common Article 3" associated?
11. What is the so-called Hull Formula for compensation to be paid for the expropriation of alien-owned property?
12. Within what organizational or institutional framework do the Vienna and Moscow Human Dimension Mechanisms operate?
13. When may a case before the ICJ be decided by more than 15 members?
14. How many parties are there to the UN Charter? (Credit if not wrong by more than four, either way. Double credit if exact.)
15. The Lotus Case (France v. Turkey), decided by the PCIJ in 1927 and referred to several times in our class presentations, has been described as "the high-water mark of positivism". In the international law context what does "positivism" mean?
16. The beginnings of "modern international relations" or "modern international law" have been assigned variously (and of course somewhat arbitrarily) to two events of the 17th century. One is the work of an eminent jurist and diplomat, and the other is the package of treaties ending a war. Name one event for full credit, both for double credit.
17. The term "instant custom" appears to be an oxymoron. Nevertheless many authorities have applied this term to a document issued in the mid-20th century. What was that document and what did it say?
18. What, in the view of some philosophers, is lacking for international law to be real "law"?
PROBLEM II
The following is copied from the Letters section of the NYT for April 14, 2001:
To the Editor:
Re "Ending the Spy Plane Deadlock" (editorial, April 12)
The Bush foreign policy team's repeated utterances of "very sorry" were directed at the loss of the Chinese plane plus the landing by the crippled American EP-3E in a Chinese military airport without permission. But the apology that the Chinese sought was for the American spy plane's flight over China's "exclusive economic zone."
Under international law, foreign states enjoy the right of overflight in the airspace superjacent to a coastal state's 200-mile exclusive economic zone, but they must have "due regard" for the rights and duties of the coastal state. The EP-3E, on an espionage mission over the Chinese zone, can hardly be said to have shown such "due regard."
This is why the Chinese insist that the matter is by no means over, because the issue of the abuse of right remains unsettled.
JAMES C. HSIUNG
New York, April 12, 2001
The writer is a professor of international law and politics, New York University.
Make the strongest argument you can to support the position that the U.S. flights to which China objects are not consistent with international law. Then evaluate the strength of that argument. Consider that the U.S. is party to all four of the 1958 Geneva conventions on the law of the sea, that China is not party to any of them, that the U.S. is not party to the 1982 UNCLOS (although it is a non-ratifying "provisional" party to the 1994 Implementing Agreement to Part XI of UNCLOS, which provides that parties to that agreement are also parties to UNCLOS), that the UN Secretary-General properly does not list the U.S. as party to the 1982 UNCLOS, that the U.S. has issued semi-official statements from time to time that UNCLOS (minus original Part XI) generally reflects international law, and that China is party to the 1982 UNCLOS but not the 1994 Agreement Implementing Part XI.
PROBLEM III
The 1988 crash of Pan Am flight 103 in Lockerbie, Scotland, produced a spate of municipal litigation, resolutions of the UN Security Council and proceedings before the ICJ. The two Libyans suspected of planting a bomb on board the aircraft were indicted on criminal charges in the U.S. and the U.K. Pan Am and the estates of the deceased passengers filed civil suits against both Libya and the suspects. In 1992 and 1993 the Security Council adopted resolutions demanding that Libya extradite the accused to the U.S. or the U.K. for trial, and imposed sanctions against Libya when it refused to do so.
Libya then applied to the ICJ for "provisional measures" under Art. 41 of the ICJ Statute to enjoin the U.S. from taking any action to coerce Libya into surrendering the accused Libyan citizens. Libya based its case on the 1971 Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, to which both Libya and the U.S. are parties, and which provides that the state in which an accused is found must either proceed with prosecution or extradite; that Libya was in the process of prosecuting; that the U.S. was thwarting that process; and that any disputes under the Montreal Convention were to be submitted to the ICJ (not, claimed Libya, for consideration in the first instance by the Security Council). Before the ICJ the U.S. relied, inter alia, on Art. 25, Chapter VII (including especially Art. 39), and Art. 103 of the UN Charter, and on the fact that the issues in the case were still pending in the Security Council. By a vote of 11 to 5 the ICJ rejected action under Art. 41 of the Statute. (With the merits of the case still pending in the ICJ an agreement was subsequently reached with Libya under which the two accused were tried in the Netherlands under Scots municipal law by a Scottish court; one defendant was convicted and one was awarded a "not proven" verdict, with the convicted defendant now appealing.)
Questions: What do you think was the reasoning of the ICJ majority? Did they, do you think, endorse the supremacy of Security Council decisions over all treaty and other international legal rights? Could they contemplate declaring Security Council resolutions "illegal"? Might the Security Council be limited in any way by the wording of Art. 24(2) of the Charter? Might the ICJ be restrained in law and in fact from judicially reviewing decisions of the Security Council by Arts. 36 and 59 of its Statute? How, finally, should what might appear to be concurrent or parallel jurisdiction be resolved in case of conflict or discrepancy?
PROBLEM IV
The following material in brackets is a casebook authors' summary of the facts in the case indicated. At the time (1924/1925) the territorial sea of the United States extended three nautical miles out from the coastal baselines, the maximum then permitted by international law.
Questions: (1) how should the federal district court have decided the issue of forfeiture of ship and cargo? (2) if the territorial sea of the United States had extended 12 nautical miles out from the coastal baselines (as it does now, in accordance with current international law), with all other facts and law the same, how should the court have decided the issue of forfeiture?
THE OVER THE TOP
United States District Court. District of Connecticut, 1925. 5 F.2d 838.
[In October 1924, the "Over the Top," a schooner under British flag and registry which carried a cargo of whiskey, was boarded by a special agent of the United States Internal Revenue Department, at a point 19 miles distant from the United States shore. The crew of the vessel was unaware of his identity. The agent purchased whiskey, which was transferred to his sea sled, and returned to shore. The transaction occurred within one hour's running distance of the sea sled to shore. The United States Coast Guard seized the "Over the Top" the following day, and towed the ship and cargo into the Port of New London. The United States then brought libels against the schooner and its cargo, seeking decrees of forfeiture. It based its claim upon alleged violations of certain sections of the Tariff Act of 1922, particularly Section 586. That section provided that a vessel whose master allowed merchandise to be unladen within four leagues (12 miles) of the United States coast without official permission was subject to seizure and forfeiture, together with its cargo.
The United States also relied upon certain provisions of the American-British Treaty, effective May 22, 1924, to the effect that Great Britain would not object to the search of a British flag vessel when there was reasonable ground for suspicion that those on board were endeavoring to import alcoholic beverages into the United States in violation of its laws, or to the seizure of that vessel when there was reasonable cause to believe that the vessel was committing or attempting to commit "an offense against the laws of the United States" prohibiting the importation of alcoholic beverages. The Treaty provided that the seized vessel could be taken into a United States port for adjudication in accordance with United States laws. It further provided that the search and seizure should not be exercised at a greater distance from the United States coast than could be traversed in one hour.]
PROBLEM V
Where do you stand on the differing emphasies (to put it most charitably) between Sir Hersh Lauterpacht and Hedley Bull? (Coursebook Ch. 8.) Do the views of Myres McDougal and Steiner-Vagts-Koh have any bearing on the question? (Handouts.) Think Big!
-- END OF EXAMINATION --