SOUTH TEXAS COLLEGE OF LAW BUSH SCHOOL - TEXAS A&M UNIVERSITY

2002 Fall Semester

Professor R. J. Graving

 

INTERNATIONAL LAW

 

Open Book/Open Materials

 

PROBLEM I

 

1. What do you understand as the difference between retorsion and reprisal?

 

2. Article 38(1)(c) of the Statute of the ICJ refers to “the general principles of law recognized by civilized nations." Give an example of one such general principle.

 

3. (a) What is a “peremptory norm" of general international law and (b) how, if at all, can it be changed?

 

4. The four sections of what important international document are labeled “baskets"?

 

5. What is the most significant difference between an ICSID proceeding and an ICJ proceeding?

 

6. Why is the 1648 Peace of Westphalia considered (albeit somewhat arbitrarily) as the beginning of “modern" international law?

 

7. To what issue might the “persistent objector" rule be relevant?

 

8. 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?

 

9. In a traditional classification of somewhat reduced current utility, international law considers internal State conflicts as falling into three categories. What are they?

 

10. Under what circumstances or conditions might the norms contained in a multilateral treaty be or become binding on States not party to that treaty?

 

11. What is the basis (or jurisdictional justification) in the UN Charter for Security Council Resolution 1441 of Nov. 8, 2002 regarding Iraq and Weapons of Mass Destruction?

 

12. It might be argued that the principle of rebus sic stantibus modifies the principle of pacta sunt servanda. How might that be? 

 

 

 

 

PROBLEM II [Double Grading Value]

 

Lutheria is a small European republic historically composed of two populations with distinct linguistic and religious traditions. The majority group, which is German-speaking and Protestant, represents approximately 70% of the total population, and lives mostly in the rich industrial North. The minority is Italian-speaking and Roman Catholic, and lives mostly in the poorer agricultural South. Since World War IT, through the "conservative" Christian Democratic Party (CDP), the German-Protestant majority has dominated Lutheria's national life and, along the way, alienated the Italian-Catholics. Over time, Italian-Catholic demands for such reforms as "one-man-one-vote" in local elections, the removal of gerrymandered boundaries, and the nondiscriminatory allocation of public services have gone ignored.

 

This disregard, as well as a general insensitivity to Italian-Catholic traditions, has spawned a growing separatist sentiment among the Italian-Catholics, at first on the part of a few, now on a widespread basis. Illustrating this development is the increasing popularity of the Partito Italiano, a new mainstream political party devoted to the establishment of an autonomous Italian-Catholic region.

 

This burgeoning separatist movement has brought increasing unrest and violence.

Terrorist attacks on the German-Protestant community, reportedly at the hands of the Red Shirt Faction (RSF), have become frequent, creating a pervasive atmosphere of fear and hatred.

However, despite these fractious forces, order has been maintained. Aided by increased police surveillance and a three-year old Terrorist Detention Act (TDA), which outlaws the RSF and allows for the indefinite detention of suspected terrorists without charge or trial; the CDP Government has taken swift and effective action against what it has called "the growing terrorist plague."

 

In recent months, due partly to the CDP Government's vigorous anti-terrorist campaign and partly to the enactment of several new controversial measures, tension between the two communities has reached the boiling point. A major source of the Italian-Catholic outrage is a new act of the Lutherian Parliament known as the "German Language Act" (GLA), making German the only language in Lutheria's schools, courts and businesses. Also repugnant to the Italian-Catholics is the Parliament's newly instituted program of birth control and family planning. The program includes mandatory birth control instruction in all schools, the provision of birth control/family planning services at all medical facilities, the legalization of abortion without restriction, and the termination of Government-subsidized pre- and post-natal care to pregnant women and infants from families of four or more.

 

Against this backdrop of terrorist violence and large outpourings of Italian-Catholics protesting discrimination against minorities, the CDP Government banned political demonstrations throughout the country.

 

Among the groups protesting the new laws is a non-sectarian worker/student civil rights group organized at Saint Angelo University in southern Lutheria. Called "The Italian People's Democracy", the group advocates non-violence but seeks ultimately "the total destruction of the current constitutional structure" in favor of an autonomous Italian-Socialist "Republic". Among its supporters is one Maria Garibaldi, an Italian-Catholic three-months pregnant with her third child, employed as a technician at the local Volksauto plant. Garibaldi also is known to be a member of the RSF.

 

One night, following the passage of the controversial measures, and while enjoying libations at a local tavern, Ms. Garibaldi became involved in a spirited shouting match centering upon a letter to the editor of the national Die Zeit newspaper. The author of the letter, one Baron Von Reichmann, head of Reichmann International (one of the largest conglomerates in Western Europe), tried to explain the wisdom of the new measures relating to birth control and family planning. Standing atop a table, Garibaldi stridently urged that "male-chauvinist-capitalist pigs like Von Reichmann should be roundly thrashed and their wealth confiscated to help the masses. "

 

A few days later, the newspapers carried a story reporting the abduction and subsequent killing of Baron Von Reichmann on the part of persons who identified themselves as members of the RSF. The following morning, Lutherian military police forcibly entered Maria Garibaldi's apartment, arrested her pursuant to an "interim custody order" (as authorized by the TDA), arid transported her and other suspects to a nearby army billet. En route, she and her fellow suspects were forced to lie face down and, while in prone position, were kicked in the head and ribs by the military police guarding them. Upon arrival, they were made to remove their shoes and socks, forced to wear a tightly woven black bag over their heads, and ordered to run barefoot over a graveled road (upon which Garibaldi fell and bruised herself several times) to a central detention building. Thereafter, over the next three weeks, during which time Garibaldi suffered a miscarriage, they were put on a bread and water diet, made to wear the black hood at all times (except when being interrogated), subjected to continuous loud noises, and forced by repeated baton prods to maintain a days-on-end standing position facing the walls of their cells with their legs spread apart and their hands raised above their heads against the walls. Whenever they collapsed from fatigue, they were picked up by the armpits and replaced against the walls in the approved posture.

 

On the twenty-fifth day of her confinement, which was interrupted only by repeated "deep interrogations", Garibaldi was given written notice that her case was being referred to a hearing commissioner pursuant to the TDA. The notice informed her that if at the hearing the commissioner found "any possible evidence of guilt", she would be ordered "indefinitely detained" so as to "protect the public". While awaiting the hearing Garibaldi miraculously escaped from prison and crossed the border into Petrino, a neighboring and predominantly Catholic republic sympathetic to the interests of the Italian-Catholic minority in Lutheria.

 

Lutheria is now demanding Garibaldi's extradition (for charged kidnapping, murder, escape from prison, and "other terrorist activities") pursuant to the 1957 European Convention on Extradition [Basic Document 6.1] and the 1977 European Convention on the Suppression of Terrorism [Basic Document 3.20], two agreements to which both Lutheria and Petrino are parties with the exception that Petrino, although having begun the process of ratifying the 1976 terrorism convention, has not yet been able to bring this convention to a final ratification vote in its national parliament as required by Petrino's constitution. Garibaldi's lawyer is resisting extradition through application to Petrino's Minister of Justice who, under Petrino law and consistent with the Extradition Convention, is empowered, after a hearing, to grant or refuse extradition. Earlier Garibaldi's lawyer had submitted an application (or petition) to the European Court of Human Rights in Strasbourg, France, where the case is pending. The application alleged violation of Articles 3,5, and 6-15 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms [Basic Document 3.4], to which both Lutheria and Petrino are parties. Both Lutheria and Petrino are also parties to the 1948 Genocide Convention [Basic Document 3.2]. They are not Participating States in the OSCE's Moscow Human Dimension Mechanism.

 

Questions:

 

1. You are the Petrino Minister of Justice. How do you rule? Explain.

 

2.You are the European Court of Human Rights. How do you rule? Explain.

 

PROBLEM III

 

Much has happened in the Caribbean since' settlement of the dispute between Antilla and Costa Grande. Two members of the three-member Organization of Lilliputian Caribbean Countries (OLCC) (for some reason never listed in the CIA's World Factbook of regional organizations) urgently request the United States to invade Antilla, the third member of the OLCC. Antilla's prime minister has been assassinated by dissident elements of his New World Baathist Movement and chaos has ensued. The two members have expressed some concern for the safety of American students attending the South Antilla College of Alchemy. Iraqis have been enlarging the Sadam Hussein Amusement Park to a size that could accommodate intercontinental ballistic missiles upon relatively effortless conversion of facilities. President Bush asks you, as Legal Adviser to the Department of State, to advise him on how to respond. Outline your answer to the President, referring to appropriate sources of international law and considering various possible justifications for invasion as well as possible alternative approaches to the problem presented.

 

PROBLEM IV

 

How useful are formal declarations, as distinguished from international agreements (or conventions), in the development of norms of international law? Illustrate your views by reference to course materials

 

PROBLEM V

 

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.]

 

Note:

 

[This Problem is included for the third successive time. It is quite simple but the majority of students at both venues have gotten it wrong. THINK!]

 

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