SOUTH TEXAS COLLEGE OF LAW

2003 FALL SEMESTER

PROFESSOR R. J. GRAVING

 

INTERNATIONAL LAW

 

OPEN BOOK/OPEN MATERIALS

 

PROBLEM I

 

Respond to each of the following in 25 words or less:

 

1. If a coastal State with a physical continental shelf of 500 nautical miles from the coastal baselines 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 (a) the Area can reach landward? (b) the EEZ can reach landward? [Carefu1!]

 

2. Identify by name or by problem two cases before the ICJ in which the respondent did not make even an appearance.

 

3. The Treaty of Osnabruck and the Treaty of Munster are usually lumped together under one descriptive title. What is it?

 

4. What is the claimed legal basis in international law for the blockade ("quarantine") of Cuba during the 1962 Cuban Missile Crisis?

 

5. Give an example, either hypothetical or from the casebook, in which an executive agreement based on the President's sole authority may trump conflicting U.S. state law.

 

6. (a) Identify a nation in which all treaties are self-executing; (b) Identify a nation in which no treaty is self-executing.

 

7. With what effect might it be appropriate to apply the doctrine of specialty?

 

8. Distinguish between the internal and the external aspects of self-determination.

 

9. What procedural problem was the Uniting for Peace Resolution designed to "solve"?

 

10. What is the difference between reprisal and retorsion?

 

11. In international law parlance what does "positivism" mean?

 

12. Two of America's "most highly qualified publicists" in international law are Professors Louis Henkin and W. Michael Reisman. How do they disagree about the main thrust of the UN Charter? Explain in a very few words.

 

PROBLEM II

 

This problem, with slight variation, has been on several recent examinations. Yet at least half of the answers fail to analyze properly the interaction of municipal legislation and law with international law. [THINK!]

 

The following material in brackets is a casebook authors' summary of the facts in a case arising in 1924/1925, when the territorial sea of the U.S. extended only three nautical miles from the coastal baselines and there was no contiguous zone. Questions: (1) How should the district court have decided the issue of forfeiture of ship and cargo? (2) How should the court have decided that issue if (as now) the territorial sea had extended 12 nautical miles and there had been a contiguous zone of an additional 12 miles, with other facts and law the same?

 

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 III

 

The material excerpted below is from The Economist of November 22-28, 2003, p. 25. Comment on it, and evaluate organizational and normative changes that have been suggested (or that might be suggested) to enhance the legitimacy, relevance and efficacy of the UN and its organs (including of course the ICJ). [You will be graded on your knowledge and organized analysis, not on what I happen to think of your conclusions. It helps clarity to number you points.]

 

Long before a bomb blew apart its headquarters in Iraq, the United Nations was deeply concerned about its role in the new terror-filled world. It remains the only body where the world's nations can take collective decisions. But to what extent can it, or should it, control how its members behave when they believe their security is threatened?

 

America's invasion of Iraq is the obvious test case. The United States claims that it did not invoke a right of pre-emptive self-defence in going to war, but acted both under Resolution 1441 and the "continuing authority" of a UN resolution mandating the use of force in the first Gulf war 12 years earlier. That is not how all the world sees it, not least because America has often made it clear that it will act on its own if it thinks it must.

 

Kofi Annan, the UN'S secretary-general, believes that a perilous precedent has been set. "If...nations discount the legitimacy provided by the UN, and feel they can and must use force unilaterally and pre-emptively, the world will become even more dangerous," he said in October. Such an approach, he had earlier told the General Assembly, could lead to "a proliferation of the unilateral and lawless use of force, with or without credible justification." On the other hand, as a senior UN official admits, the only effective pre-emptive action at present is the unilateral kind.

 

The answer, Mr. Annan believes, is to show that collective action can work just as well. But how? Mr. Annan, realising that the UN has reached a "fork in the road" between continuing relevance and death, has recently announced the creation of a high-level panel to assess the present dangers and decide how the UN can respond, while keeping America on board.

 

Pre-emption is not specifically mentioned in the panel's brief, but it will inevitably be the focus of its discussions. Containment and traditional deterrence, relied on for the past half-century, are clearly no longer adequate to deal with the new world of terrorists, armed with weapons of mass destruction. Should explicit doctrines of pre-emption or prevention replace them? And, if so, can they be carefully enough defined?

 

At present, the UN charter, drawn up with the horrors of the second world war still fresh, obliges member states to "refrain from the threat or use of force" and to settle their international disputes by peaceful means. Recourse to force is permitted in only two circumstances: under Article 51, allowing self-defence, or under the broad powers given to the UN Security Council "to decide what measures shall be taken...to maintain or restore international peace and security", including use of force. This could in theory, and perhaps in practice, be extended to cover pre-emption.

 

The notion of pre-emption is, of course, not new. In his "On the Law of War and Peace", published in 1625, Hugo Grotius, considered to be the father of international law, stated that it was lawful "to kill him who is preparing to kill". A century later, Emmerich de Vattel declared in "The Law of Nations" that "A nation has the right to resist the injury another seeks to inflict upon it, and to use force against the aggressor. It may even anticipate the other's design." But, he goes on, the pre-emptor must "be careful not to act upon vague and doubtful suspicions, lest it should run the risk of becoming itself the aggressor."

 

The classic formula on of the right of pre-emptive attack was given in the mid-19th century by Daniel Webster, then America's secretary of state, over the Caroline incident. In 1837, British troops attacked an American ship, the Caroline, which was being used to ferry supplies to anti-British rebels in Canada. The vessel, at the time, was in American waters; American public opinion was outraged. The British claimed legitimate self-defence, but Webster argued later that anticipatory action was justified as self-defence only where "the necessity of that self-defence is instant, overwhelming, and leaving no choice of means and no moment for deliberation." In addition, he said, the force used had to be proportionate to the threat. A third justification is now usually added-clear evidence of an intent to attack.

 

The UN has, in fact, been fiddling with the notion of pre-emption ever since its foundation. Article 51, in particular, has been subjected to much "creative re-interpretation" to allow the extension of the right of self-defence to cover an ever greater array of situations: retaliation against terrorist attacks; armed intervention to protect or rescue citizens living abroad; anticipatory action against imminent and overwhelming armed attack; and "robust" humanitarian peacekeeping operations. All this is in apparent breach of the UN's bedrock principle of national sovereignty. But it is understood that necessity demands it.

 

During the cold war, states sometimes resorted to, pre-emptive force under the supposed cover of Article 51. Israel did so in the six-day war against Egypt and other Arab states in 1967. Both George Bush senior and Bill Clinton supported pre-emption in principle against Iraq and North Korea, if they showed signs of using their chemical or nuclear arsenals.

 

Now President George Bush junior, along, with some others, wants to extend Article 51 to cover- as a last resort- strikes against dangerous regimes before they become imminent threats, and even without clear evidence of an intent to attack. "If we wait for threats to materialize," he says, "we will have waited too long."

 

Such, a re-interpretation of Article 51 may not be as outlandish as it seems. Once a rogue State or terrorist group has acquired nuclear weapons, it becomes virtually impossible to contain. Furthermore, the threat of pre-emption could be seen, and used, as a form of deterrence. As the Bush administration's National Security Strategy puts it, “Our forces will be strong enough to dissuade potential adversaries from pursuing a military build-up in hopes of surpassing, or equaling, the power of the United States." This new reality is one to which the UN is going to have to adapt.

 

The fight for seats

Few, however, want to see a world in which the strongest decide when and against whom to use unilateral pre-emptive force - tempting others to follow suit. An agreed set of guidelines is evidently needed. And the difficulty is not only how, to set clear rules, but how to bolster the legitimacy of the body that enforces them.

 

PROBLEM IV

 

(1) Discuss the role and effect of General Assembly Resolutions in the possible creation of customary international law. (2) In the Texaco/Libya Arbitration (p. 112 in the casebook) could the arbitrator have reasonably ruled that the 1973-1974 Resolutions, although not replacing the 1962 Resolution, nevertheless destroyed it, leaving a Lotus-like gap in customary international law?

 

PROBLEM V

 

Respond to each of the following with reasonable brevity:

 

1. In some senses Taiwan is a "state", in other senses it is not. Explain how this can be, touching on traditional definitions (including "constitutive" versus "declaratory" theories and the significance of membership or not in the UN).

 

2. There was mention in class of the New York lawyer (Sugarman) who in 1980 flew round trip to Acapulco on the Mexican government-owned airline but was stranded for some 18 hours at the airport before his return flight, allegedly suffering as a result a veritable encyclopedia of serious physical and psychological damage. In the federal District Court for the Southern District of New York, where Sugarman sued Mexico for negligence, Mexico pleaded sovereign immunity as a jurisdictional defense. Sugarman won on that issue. How, since the alleged acts of negligence occurred in Mexico, was he able to do that?

 

3. Prof. Janis says the decision of the European Court of Human Rights in the Soering Case (p. 380 in the casebook) put the UK between a rock and a hard place. If Virginia had not, to mix a metaphor, gotten the UK off the hook, what should the UK have done, legally (or if this is different, practically)? [There is no "correct" answer to this, just arguments.]

 

4. Which one of the following expressions in Latin, often found in literature about international law, represents the most fundamental concept for the creation of international law today, and why? -- exceptio non adimpleti contractus, contra legem, terra nullius, rebus sic stantibus, pacta sunt servanda, de lege ferenda, opinio juris, ex aequo et bono.

 

-- END OF EXAMINATION --