W.B. Fisch Dec. 7, 1998
1. This is a 24-hour take-home examination, consisting of four questions. It is written as the equivalent of a 3 1/2-hour timed examination. A suggested time is assigned to each question, reflecting its relative value for grading purposes:
I .................................. 85 Minutes
II ................................. 85 Minutes
III ................................ 20 Minutes
IV ............................... 20 Minutes
You may commence the test by picking it up in Room 203 at any time during business days of the examination period Dec. 7-18, 1998
2. You must return your answers and this examination sheet to the faculty secretaries in Room 203, no later than 24 hours after you receive it from them. Make sure when you pick it up that the secretaries will be available in 203 to receive the completed exam within 24 hours. The secretaries will record the time of pickup and the time of return for each student.
3. You may use any materials acquired or prepared by you for the course, including the coursebook and classnotes. You may not use library materials.
4. Please write on one side of the bluebook or typed/printed page only.
5. There are 8 pages in this examination, including this cover sheet. Make sure you have the complete test.
Scylla and Charybdis are Pacific island states situated on either side of the Channel of Discovery, an international waterway heavily used for commercial shipping between major continental markets in North America and Asia. The Channel is 50 miles long and its width varies from 12 to 20 miles. The two countries entered into a treaty in 1945 fixing the boundary between their respective coastal jurisdictions along the Channel exactly equidistant from each coast. At the same time they each declared a 12-mile territorial sea from their coastlines generally.
In 1990 the two states agreed by treaty to impose a transit tax on all merchant ships passing through the Channel, and to share equally in the revenues generated by the tax. For most merchant ships the cost of taking an alternative route, which would add several days to their voyages, significantly exceeds the transit tax; as a result, most have paid the tax without protest. The major developed countries (including the U.S.) whose markets are served by shipping through the Channel, noting that the two countries are struggling to develop their economies and that revenues generated by the transit tax are crucial to their development plans (partly financed by loans from the World Bank), agree not to challenge the tax so long as it remains at a reasonable level.
Scylla has ratified the United Nations Convention on the Law of the Sea (CLOS), which went into force for it in 1994. Charybdis signed the Convention when it was adopted, but has never ratified it. Both are members of the United Nations, and both have submitted to the optional clause jurisdiction of the International Court of Justice without reservations. Both are also original members of an organization called the Organization of Mid-Pacific States (OMPS), formed in 1995. OMPS now has 10 member states, all island nations in various stages of development. Three provisions of the OMPS charter are as follows:
Art. 2.4: "Members shall refrain from the use of force in their international relations."
Art. 19: "Members shall not charge transit fees for commercial shipping in international waterways adjacent to their territories."
Art. 90: "All disputes concerning the application and interpretation of this Charter shall be submitted to the International Court of Justice."
Both Scylla and Charybdis attached the following reservation to their instruments of ratification to the OMPS charter:
"Scylla [Charybdis] reserves the right to impose all taxes necessary to sustain its economic development."
None of the 6 other original members of OMPS objected to this reservation.
Titania, now the largest and most developed country in OMPS, ratified the OMPS charter in 1997 without reservation. Titania is also a party to UNCLOS and has submitted to the compulsory jurisdiction of the International Court of Justice. It attached the following reservation to its optional clause submission:
"This declaration shall not apply to matters exclusively within the domestic jurisdiction of Titania, as determined by Titania."
In early 1998 Penny Shipping Lines, one of the largest U.S.-based merchant shipping companies involved in heavy use of the Channel of Discovery, moved its base of operations to Titania, established a Titania corporation (Penny Titania) to conduct all of its shipping operations, and re-registered all of its ships under Titanian law. The U.S. corporation owns 100% of the shares of the Titania corporation, but no longer engages directly in any shipping activities. It is clear that this decision was prompted by Titania's adoption of a body of maritime laws and regulations (including tax laws) much more favorable to shipowners than those of the United States.
Titania now institutes proceedings against Scylla and Charybdis in the International Court of Justice, claiming that the respondent countries' imposition of a transit tax on ships moving through the Channel violates both the OMPS charter and general international law.
What defenses, both procedural and on the merits, might Scylla and Charybdis assert based on the above facts, and which are most likely to be successful? Explain.
Gobi and Lama are neighboring countries in Asia, with a long history of active but troubled political and economic relations between them. Gobi is predominantly Muslim, agricultural but with a substantial and growing manufacturing sector, and relatively populous. It has a substantial standing army with modern non-nuclear weapons. Lama is predominantly Buddhist, mostly mountainous and relatively underdeveloped, relying predominantly on timber harvesting and tourism for its economic base. Lama's population is smaller and largely concentrated in two metropolitan areas, with the rest scattered among mountain villages. Lama has only a small standing army, and its police force is just adequate to keep the tourist and timber areas safe.
The boundary between the two countries lies along a mountain range. On the Gobi side is a vast plain containing some of its most productive agricultural areas, served by several small-to-medium-sized towns and cities. On the Lama side is mountain terrain far removed from Lama's major population centers, an area inhabited mostly by subsistence-farming villagers who speak Hurdu, an ancient common language unique to the region, and who have always had a distant and difficult relationship with the Lama central government. Early in this century the Lama government designated this area an "autonomous region" with boundaries roughly corresponding to the linguistic boundary, and gave it a greater degree of self-government than other political subdivisions in the country. Nonetheless most Hurdus believe that they are subject to invidious discrimination in the rest of the country.
There has always been a militant and vocal minority of the Hurdu population advocating complete independence from Lama, and in the last 5 years this minority gained increasing control of the militia and of regional and local governmental bodies. They have received substantial financial and moral support from Hurdu emigrants in the United States and elsewhere, but no official support from any country. In 1997 the leaders of this faction had enough power, though still supported by only a minority of the Hurdu population, to declare the creation of an independent republic of Hurdustan. They required all Lamans who were not Hurdu to leave, and were able to fend off the relatively feeble efforts of the Laman army to restore central government authority, although the army still makes occasional forays into the region and remains concentrated on the Hurdu border. No state has recognized Hurdustan as an independent state or established diplomatic relations with its leaders.
The Hurdu militants have long claimed that their ancestral home included the Gobi plain, from which they had been ruthlessly driven by Gobi muslims several centuries ago, and as part of their declaration of independence they demand that Gobi return this territory to Hurdustan. Even before the declaration of independence, bands of militants made raids on towns on the Gobi side, designed to publicize their claims. After the declaration, such raids increased in frequency and intensity, although there is no direct evidence of participation of Hurdu officials. Gobi has submitted formal protests through diplomatic channels to the Lama government, demanding that such raids be stopped, and publicly warns the Hurdus that if they aren't stopped there will be "appropriate action to protect Gobi's citizens and property".
In the summer of 1998, a particularly damaging raid was made by a Hurdu guerrilla band on a Gobi town, killing two people and injuring scores in the town's central marketplace. On the same day the mayor of a Hurdu village, an outspoken militant, marched with two armed friends into a clothing shop owned by one of the few muslims living in the area, and subjected the owner to various forms of torture to get him to sign a document turning over the property to the mayor's son. The owner and his family and a half-dozen other muslims were rounded up and taken to a local temple to be held there "pending trial for treason against Hindustan". The Lama government attempted to negotiate their release but failed, and the army made no effort to rescue them.
At this point, claiming that Lama is either unable or unwilling to protect its own citizens, much less the Gobi victims of guerrilla raids, Gobi sends an invasion force into the region. They occupy about half of the territory, inflicting devastating losses on the Hurdu militias. The occupied territory includes the village where the muslims are being held; the prisoners are released and the mayor is arrested and taken to Gobi where he is charged with torture in violation of international law. A "security zone" is declared by the Gobi army for the territory which they occupy, which they insist they will continue to occupy unless and until Lama is willing and able to stop the guerilla raids. The Lama army is able to take advantage of the weakness of the remaining Hurdu militia to retake control over the rest of the "autonomous region". Lama and Gobi reach an agreement whereby the Gobi army withdraws to within its own borders and they submit all claims against each other arising out of the above incidents to an international arbitral tribunal.
Assume that both Lama and Gobi are members of the United Nations and are parties to the United Nations Convention against Torture and Other Cruel, Inhuman and Degrading Punishment of 1984, but are not parties to any other relevant international treaties or agreements.
Answer each of the following questions concerning the above fact situation independently of your answer to the other.
(a) What claims can each assert against the other under international law on the above facts, what defenses would be available, and how should they be resolved? Explain.
(b) Do the Hurdus collectively have a claim against either Lama or Gobi under international law for violation of human rights? Explain.
The United States and Iran finally enter into a comprehensive treaty, ratified with the advice and consent of the Senate, establishing mutual diplomatic relations and resolving all outstanding claims between the two countries. Included among its many provisions is the following:
"It shall be a crime under the laws of each Contracting Party, punishable as for disturbing the peace, to advocate or engage in acts of violence, hatred or discrimination against any religion."
After the effective date of this treaty, John Smith is arrested and charged with disturbing the peace under the law of the District of Columbia, for standing on a street corner advocating expulsion from the country of all Jews. The complaint specifically recites the treaty. Smith moves to dismiss the charge as legally insufficient.
Assuming (1) that the U.S. attached no reservations to its ratification of the treaty, and (2) that the conduct in question would not have been punishable under D.C. law prior to the effective date of the treaty, how should the court rule on Smith's motion? Explain.
Alpina is a small mountainous country whose principal product for export is wool from a particular breed of sheep. Its climatic conditions are especially favorable for this breed and the wool is considered of exceptional quality. American clothing manufacturers are a major market for fabrics made from this wool. Until very recently sheep farmers in Alpina were organized into about 15 cooperatives which sold spun wool directly to foreign fabric manufacturers, essentially in competition with each other.
Concerned that the prices charged by the cooperatives are too low, the Alpina legislature adopts a law establishing a Wool Marketing Board, whose members are appointed by the Ministry of Agriculture. The law requires all sheep farmers to sell their wool to the Board, and forbids any export of wool by anyone other than the Board. The Board undertakes an aggressive world-wide marketing campaign, and establishes wholly-owned distributing companies in various countries, including the United States, where its Alpina Woolens, Inc., is thus the exclusive distributor of Alpina wool in the U.S.
The antitrust division of the U.S. Justice Department now institutes an action in an appropriate U.S. federal court against the Board and Alpina Woolens, Inc., alleging that they have acted in restraint of competition in Alpina woolens, in violation of the U.S. antitrust laws. The complaint alleges that the prices charged by the defendants are substantially higher than those charges by the individual cooperatives, and seeks an order enjoining the defendants from interfering with the cooperatives' sales to U.S. buyers. The defendants now move to dismiss the action for failure to state a claim, on the ground that U.S. law does not apply to the defendants' purchases of wool from Alpina producers. The Board, in addition, moves to dismiss the action for lack of personal jurisdiction.
How should the court rule on these motions? Explain.