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SOUTH TEXAS COLLEGE OF LAW
FINAL EXAMINATION
2002 SPRING SEMESTER
PROFESSOR R.J. GRAVING
INTERNATIONAL LAW
PROBLEM I
Respond to the following, succinctly:
1. What is the difference between lex lata and de lege ferenda?
Where does “soft law” fit in?
2. With respect to parties and with respect to subject matter how does the
jurisdiction of ICSID differ from that of the ICJ?
3. If a coastal state chooses to assert its maritime jurisdiction to the
maximum extent permitted by the 1982 UNCLOS, what is the breadth of its EEZ in
nautical miles (Assuming no conflict with the putative EEZ of any other State)?
Explain
4. In international treaty law what is the difference between ratification and
accession?
5. What relationship is there, if any, between the UN General Assembly
Resolutions and the existence and creation of international law?
6. What did the late Professor Myres McDougal mean by “exclusive” and
“inclusive” competence? Does the distinction “fit” with the monism-dualism or
monism-pluralism dichotomy?
7. What is the basis (or jurisdictional justification) in the UN Charter for
the Security Council's establishment of the International Criminal Tribunal for
the Former Yugoslavia?
8. The 1968 Peace of Westphalia (Treaties of Osnabruck and Munster), ending the
30 Years' War, is said (somewhat arbitrarily) to signal the beginning of the
“modern” age of international law. Why is that?
9. In what context is it important to know whether there is opinio juris?
10. In what context does the doctrine of “specialty” apply?
11. What is the “peremptory norm” of general international law and how, if at
all, can it be modified?
PROBLEM II
The following Problem 4-5 is taken directly from our course book (p.434),
copied here for your convenience. Questions: (1) Has Hindustan violated
international law by threatening the use of nuclear weapons as a measure of
retaliatory self-defense against Islamistan? (2) In any event, are there any
additional or alternative legal norms, procedures, and/or institutions to be recommended
that might further help to prevent or discourage situations of the kind posed
by this problem? Deal with these questions in the role specified for you in the
last paragraph.
Problem 4-5
Hindustan Threatens Nuclear Self-Defense
Section 1. Facts
Hindustan and Islamistan are neighboring South Asian countries with a long
history of mutual enmity, due in part to their religious differences. Soon
after achieving political independence from their common colonial overlord in
the wake of World War II, each claimed sovereignty over Karakorum, an
economically and strategically important border territory whose population was,
as it is now, 80% Muslim and thus a matter of great religious—and
political—significance to Islamistan. However, because Hindustan had military
superiority at the time of independence, it was able, via martial law,
effectively to occupy and control Karakorum without serious challenge.
Until recently. Partly, because Hindustani rule has continuously abused the
human rights of Karakorum's Muslim majority, partly because Islamistan has
fomented and facilitated retaliatory civil strife in the territory, and partly
because each country has worked steadily over the years to build up its
tactical and strategic armed forces, including the development and deployment
of a limited number of nuclear weapons (which each country insists are
necessary for self-defense), tensions finally reached a breaking point. Three
months ago, Islamistan initiated conventional military action to wrest
Karakorum from Hindustani control and since then has pursued Hindustani forces
even into Hindustan itself. Hindustan, outraged by these assaults and fearing a
irreversible setback to its claim of sovereignty over Karakorum as well as an
end to its military occupation, sternly warned Islamistan that any continuation
of its “military aggression” would be met with a nuclear response in accordance
with Hindustan's “inherent right of self-defense.” It demanded that Islamistan
totally withdraw its armed forces from both Hindustan and Karakorum within one
week's time or suffer a nuclear missile attack against certain of its military
installations within its territory.
Satellite data and intelligence sources from around the world confirm
Hindustan's ability to carry out its nuclear threat. As Legal Adviser to your
country's Ministry of Foreign Affairs, you have been asked to advise your
country's Foreign Minister and its Permanent Representative to the United
Nations as to the international legality of Hindustan's threat of nuclear self-defense.
Both Hindustan and Islamistan are parties to the United Nations Charter and all
other treaties pertinent excepting the 1968 Treaty on the Non-Proliferation of
Nuclear Weapons (NPT).
PROBLEM III
This question is repeated from the May 2001 examination
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 IV
John R. Bolton is currently Under Secretary of State for Arms Control and International
Security. In the administration of George H.W. Bush he was Assistant Secretary
of State for International Organization Affairs. The following are excerpts
from an op-ed piece of his published in the Wall Street Journal during the
“interregnum.” Comment on his arguments.
Rule of Law by John R. Bolton
U.S. Isn't Legally Obligated to Pay the U.N.
Adjourning for the year, Congress stung the Clinton Administration by refusing
to appropriate any funds for the payment of U.S. “arrearages” (unpaid assessments)
to the United Nations. U.N. supporters contend that the U.S. must pay up in
order to meet its “solemn legal obligations.” Failure to pay, they assert, is
“illegal” under the “treaty commitment” the U.S. entered into by ratifying the
U.N. Charter in 1945.
This line of argument is flatly incorrect. Its widespread acceptance, moreover,
is based on several misperceptions about the Constitution, U.S. obligations
under international treaties, and the attendant policy implications for
American decision makers.
First, treaties have no special or higher status than other acts of Congress
or, for that matter, than the U.S. Constitution. There is widespread confusion
on this point, even among sophisticated foreign policy analysts, based in large
part on some expansive dicta by Justice Oliver Wendell Holmes in a 1920 Supreme
Court decision. At the time of the U.N.'s formation, some pointed to Holmes's
dicta to reinforce their worry that treaties might be used as a “back door” to
amend the Constitution.
Perhaps sensing the need to quiet these concerns, the Supreme Court revisited
the issue in 1957 in Reid v. Covert. It ruled that “no agreement with a
foreign nation can confer power on the Congress, or on any other branch of
Government, which is free from the restraints of the Constitution.” It stressed
that “this Court has regularly and uniformly recognized the supremacy of the
Constitution over a treaty.” Whatever the legal impact of a treaty, that impact
must be determined consistently with the Constitution and subordinate American
law.
Second, treaties are “law” only for U.S. domestic purposes. In their
international operation, treaties are simply “political” obligations.
The Supreme Court recognized this distinction as far back as 1884, holding that
a treaty “is a law of the land as an Act of Congress is, whenever its
provisions prescribe a rule by which the rights of the private citizen or
subject may be determined.” As for the international aspects, the court held
clearly that a treaty “depends for the enforcement of its provisions on the
interest and honor of the governments which are parties to it.” And if they
don't work? “If these fail, its infraction becomes the subject of international
negotiations and reclamations, so far as the injured party chooses to seek
redress, which may in the end be enforced by actual war.”
There may be good and sufficient reasons to abide by the provisions of a
treaty; in most cases one would expect to do so because of benefits treaties
provide not because the U.S. is “legally” obligated to do so. As the Supreme
Court stressed in 1889 in Chae Chan Ping v. U.S.: “whilst it would
always be a matter of the utmost gravity and delicacy to refuse to execute a
treaty, the power to do so was prerogative, of which no nation could be
deprived without deeply affecting its independence.”
Third, treaty obligations can be unilaterally modified or terminated by
congressional action. This is the principle that U.N. advocates ignore when
they argue that Congress is “legally bound” every year to authorize and
appropriate precisely the same amount of money as that demanded by the U.N.'s
assessment notice.
They argue, in effect, that Article 17 of the U.N. Charter (concerning the
allocation of U.N. expenses among the members) strips the Congress of its
normal constitutional power and discretion over financial matters under the
Constitution's Appropriations Clause (Article 1, Section 9). It would certainly
come as news to Congress that the U.N. Charter had modified its power over the
purse. The Supreme Court has been consistent on this point. As it said in 1871
in The Cherokee Tobacco, “an act of Congress may supersede a prior
treaty.” There is no doubt that, whatever the U.N.'s assessment notice may say,
Congress is fully within its rights to pay it, ignore it or do anything in
between.
Fourth, American constitutional requirements override “international law.” It's
hard to imagine that any member of Congress would seriously argue the contrary
point: That the U.S. is “bound” to pay its U.N. assessments because there is a
“higher” authority – an authority over and above the Constitution – that
somehow compels such a result.
Some acolytes of International law, however, make precisely that argument,
contending that whatever the provisions of American jurisprudence; it must bend
its knee to higher international authority. In their view, this is just the
next step up from saying that state law gives way before contrary federal law.
In that sense, they say, failing to acknowledge higher international authority
renders the nonpayment of U.S. assessments “illegal.”
The argument that the U.S. Constitution is subordinate to international law,
erroneous though it is, at least has the virtue of clarity. Either the U.N.
Charter amends the U.S. Constitution to diminish congressional discretion over
appropriations or it does not. If it does, then the utopian internationalists
are right, and the U.S. is a global outlaw. If not, then the normal
constitutional powers of Congress (and the president) are undiminished, and
Congress can legitimately override any treaty provision it chooses. There is no
escape from this logic.
Of course, the decision on whether and what amounts the U.S. should pay for
U.N. matters, political though it may be, is not an excuse for obtaining
benefits on the cheap. It does not follow inevitably that because the U.S. is
not legally obligated to pay, it should not pay. Instead, the correct
conclusion is that the U.S. should meet its commitments when it is in its
interests to do so and when others are meeting their obligations as well. It is
precisely the dissatisfaction with the performance of other member governments
and U.N. secretariats that has led to Congress's withholding of appropriations
before – and which may well do so again.
Mr. Bolton, senior vice president of the American Enterprise Institute, was
assistant secretary of state for international organization affairs in the Bush
administration.
PROBLEM V
What do you see as the greatest need for the effectiveness of the international
legal system today? Acceptance? Structure? Rule, scope and precision?
Methodology? Essentiality? Commonality of values? Other?
END OF EXAMINATION