W.B. Fisch Dec. 5-15, 2000
1. This is a 24-hour take-home examination, consisting of five 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 .................................. 60 Minutes
II ................................. 20 Minutes
III ................................ 60 Minutes
IV ............................... 30 Minutes
V ................................ 40 Minutes
You may commence the test by picking it up in Room 203 at any time during business days of the examination period Dec. 5-15, 2000.
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 or electronic databases.
4. Please use one side of the bluebook or typed/printed page only.
5. There are 10 pages in this examination, including this cover sheet. Make sure you have the complete test.
Acme Mining Company is a U.S. corporation engaged in mining activities around the world. One of its operations is a large strip mine in the developing central American country of Guaxico. The mine, which yields a variety of metal ores including gold, silver and copper, is operated by Acme under a lease granted by the Guaxico government. It has resulted in the leveling of two substantial hills which had been tropical rain forest inhabited by small villages of indigenous people, and the lease granted by the government extends to yet another, much larger hill which Acme plans to mine and level in the very near future. In the course of developing the mine, Acme (first by negotiation but eventually by force) has removed all of the indigenous people from the area, who constitute a distinct tribe with a unique language and subsistence culture closely tied to the rain forest. This removal had the blessing of the Guaxico government, which resettled the people in new villages, located not far from the mine but in an area long since cleared for agriculture. The new villages were built with funds Acme was required by the government to provide as a condition of the mining lease.
The removed people, although many of them have found jobs either with farmers or with Acme itself and they have access to welfare support, have become demoralized because they can no longer pursue their hunter-gatherer lifestyle or celebrate their important religious and cultural events on the peaks of the hills which Acme has or will be leveling. Many have developed significant health problems associated with depression and a significant change of diet, exacerbated by significant environmental hazards created by the mining operation. Their death rate is rising and their birth rate is falling; their total number is already 15% below the pre-removal level and is expected to continue to drop.
Tom Bean was one of the villagers who was removed, along with his wife and small child, from the lease area. He resisted moving, and in the process of being forcibly removed suffered substantial injury from which he has not fully recovered. He is unable to work full time, and his wife died not long after they were resettled.
Guaxico is a member of the United Nations, but is not a party to any other international agreement relevant to the situation.
Answer each of the following questions concerning the above fact situation independently of the other.
(A) On the advice of an American lawyer who visits the area and hears of his plight, Bean sues Acme in the U.S. federal court for the district in which its headquarters are located, for damages suffered by reason of his removal from his home village. He cites two statutes in support of his claim: the Alien Tort Statute, 28 U.S.C. §1350 (ATS), and the Torture Victim Protection Act of 1991, 28 U.S.C. §1350 note (TVPA). The ATS reads as follows:
"The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States."
The TVPA reads in pertinent part as follows:
"Sec. 2. Establishment of civil action.
"(a) Liability. - An individual who, under actual or apparent authority, or color of law, of any foreign nation -
"(1) subjects an individual to torture shall, in a civil action, be liable for damages to that individual; or
"(2) subjects an individual to extrajudicial killing shall, in a civil action, be liable for damages to the individual's legal representative, or to any person who may be a claimant in an action for wrongful death."
In addition, Bean cites Art. 2 of the Genocide Convention, which is in force for the United States and which defines genocide as follows:
"In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group. "
How should the court rule on these claims? Explain.
(B) What other remedies, if any, might Bean pursue under international law? Explain.
John Smith is a retired army officer who, as a young enlisted man during World War II, was a prisoner of war in Japan. While being held prisoner, Smith was forced to work in an aircraft manufacturing plant operated by Mitsubishi Corporation, building warplanes for the Japanese Air Force. He was kept in chains in a small cell on the plant premises whenever he was not working, guarded by company security personnel, and periodically tortured by them. Assume that this treatment was a clear and grave violation of the Geneva Convention on Prisoners of War, and that Japan was bound by that Convention. A number of Japanese senior military officers were punished during the post-war military trials for violations of a similar character.
In 1951, the United States and 47 other countries ("Allied Powers") signed a peace treaty with Japan, which contained, among other provisions, an Article 14 dealing with payment by Japan for the "damage and suffering caused by it during the war." Article 14(a) authorized the Allied Powers to confiscate Japanese-owned assets within their respective jurisdictions, and required Japan to assist in the rebuilding of territory occupied by Japan during the war. The second paragraph of the article reads as follows:
"(b) Except as otherwise provided in the present Treaty, the Allied Powers waive all reparations claims of the Allied Powers, other claims of the Allied Powers and their nationals arising out of any actions taken by Japan and its nationals in the course of prosecution of the war, and claims of the Allied Powers for direct military costs of occupation."
Smith now sues Mitsubishi Corporation in an otherwise appropriate federal court in the U.S., seeking civil damages for harm suffered by reason of such forced labor. Assume that the defendant corporation is the same entity which operated the plant at which Smith worked and was confined, and that the defendant's current activities (through wholly-owned subsidiaries) in the state where the court is located are sufficient to establish personal jurisdiction over it for purposes of the present lawsuit. Assume further that there is diversity of citizenship for purposes of federal court subject-matter jurisdiction.
How should the court rule on this claim? Explain.
Orangia and Verdia are neighboring countries in southeastern Europe, formed out of the defeated Ottoman empire after World War I. Their principal populations have a common language and ethnic origin long antedating their conquest by the Turks, but gained their independence as separate countries because of a sharp religious division between Greek Orthodox Christians and Muslims. As a result, Orangia's population is predominantly Orthodox and Verdia's is predominantly Muslim. Nonetheless each country has a substantial minority of the other religious group among its citizens. The Orthodox minority in Verdia (20% of the total population) is concentrated in one province where they constitute a large majority and hold most of the political and governmental positions. The Muslim minority in Orangia (10% of the total population) is dispersed throughout the country and has only marginal political and economic influence.
In the last decade or so a long-standing separatist movement has gained power in the Orthodox province of Verdia, complaining that the province has been disadvantaged in various ways by prejudice and discrimination on the part of the Muslim majority - a disproportionately small share of funds from the central government, restricted opportunities for important political and administrative positions in the central government, a "glass ceiling" on promotions and compensation in business enterprises owned by Muslims and/or headquartered in other provinces, and so on. Repeated efforts on the part of the provincial government and the province's representatives in the national legislature to get the central government to take action to correct this alleged discrimination have been unsuccessful.
At the initiative of the provincial government, a referendum is held on the question of secession from Verdia, and the vote is 85% in favor. The provincial government thereupon declares that the province is now an independent state, calling itself Christiania. It declares the Orthodox religion to be the state religion, but guarantees full freedom of every citizen to worship according to his or her own conscience. The provincial police and all elements of the Verdian armed forces stationed in the province declare their allegiance to the new state.
Verdia's central government refuses to recognize Christiania, and announces that unless the province affirms its allegiance to Verdia, the Verdian army will intervene to restore the authority of the central government. Its armed forces are mobilized to mass at the border and prepare to invade the province.
Christiania then requests the assistance of Orangia, whose government is the only one immediately to recognize the new state and whose military forces are generally larger and better equipped than Verdia's, to protect it against the threatened invasion. Orangia agrees to help, sends a large military contingent into Christiania to mass at the Verdian border, and warns Verdia that if they invade Christiania they will find themselves in a full-scale war with Orangia. Verdia keeps up its rhetoric of demand, but holds its army at the border, where the situation is very tense but for the time being results only in a few isolated skirmishes with minimal casualties.
Answer each of the following questions concerning the above fact situation independently of the other.
(a) Verdia now institutes proceedings against Orangia in the International Court of Justice, claiming that Orangia's intervention into the dispute violates international law. Both Verdia and Orangia have submitted to the compulsory jurisdiction of the Court. Orangia's submission was without reservation, whereas Verdia's was subject to reservations identical in language to the so-called "Connally" and "Vandenburg" reservations in the 1946 declaration of submission of the United States.
What defenses can Orangia assert against this proceeding and/or claim, and how should the Court rule on them? Explain.
(b) Russia, a close neighbor of the two countries, is so far the only other state which has recognized Christiania. Russia proposes a resolution in the UN Security Council which would declare Verdia's threat to invade Christiania a threat to the peace, demand that Verdia withdraw its forces from the border, and direct Orangia to use all force necessary to repel Verdia's invasion should it take place. Discuss the following questions concerning this proposal: (i) How should the Council respond? (ii) What institutional obstacles may prevent the Council from taking appropriate action in the situation? (iii) What alternative exists to Security Council action?
American Widgets (American), a U.S. company, and WidgetGaul (Gaul), a French company, simultaneously and independently develop the same new design for an automated widget. American obtains a U.S. patent and Gaul a French patent for the device. Gaul manages to obtain patent rights as well in Sweden and in Gorbya, a rapidly privatising eastern European country. Gaul licenses its Swedish patent to Nordic Widgets (Nordic), pursuant to an agreement which prohibits Nordic from selling widgets manufactured under the Swedish patent in any other country in which Gaul holds patent rights, in exchange for which Gaul agrees not to sell any of its products in Sweden. Under the law of Gorbya, the Gaul patent precludes anyone (including American) from selling the automated widgets in Gorbya without Gaul's permission. American, wishing to enter the Gorbya market with its own product, attempts to negotiate a license from Gaul to do so, but is rebuffed; Gaul already sells unautomated widgets in Gorbya and wishes to keep that market free of competition from automated widgets.
Assume that the agreement between Gaul and Nordic is lawful under the law of France, Sweden, and Gorbya. Assume further that under Gorbyan law, but for the exclusion clause in the agreement, Nordic's widgets could be sold lawfully in Gorbya on the theory that the license constituted world-wide permission to sell the products made pursuant to the license.
American now institutes a civil action against Gaul and Nordic for damages under the U.S. antitrust laws, alleging that their agreement constitutes an illegal restraint of U.S. export trade; a separate claim against Gaul alone alleges that its refusal to agree to a license of its Gorbya patent while not exercising it itself also constitutes an illegal restraint of trade. Assume that all of these claims would be legally sufficient under U.S. law if all events occurred in the United States.
How should the court rule on this claim? Explain.
Simon Degree is a citizen of Franconia, a small state on the West African coast which depends on agriculture and ocean fishing. Franconia is not a party to any of the Conventions on the Law of the Sea. Since achieving its independence in the 1960's it has consistently asserted a 200-mile territorial sea and, although the fishing in those waters is relatively sparse, it has occasionally enforced its rather liberal laws on the size of catch against foreign-flag ships. However, none of the other countries mentioned in this problem have been involved in any enforcement activities by Franconia.
Degree moves to Buddhistan in South Asia, where he establishes permanent residence, takes a job as an accountant with a local government agency, and applies for naturalization, for which a 2-year waiting period is required. Degree takes a vacation as a crew member on a cargo ship which is owned and operated by a Buddhistanian corporation; the regular officers and crew of the ship are all Buddhistanian citizens, but it is registered under the flag of Caribbea, a state which has low taxes and notoriously lax regulation of the operation and maintenance of ships. The ship's voyage, following a heavily-used route for international shipping from South Asia to Europe, goes around Africa and through a strait between the mainland coast of Franconia and a large island which also belongs to Franconia. The strait is 75 miles long and 18 miles wide at its narrowest point.
Franconian law prohibits the importation of any non-medicinal alcoholic beverages into the country. While Degree's ship is passing through the strait on its way to Europe, at a point 9 miles from either shore, the Franconian coast guard stops it, boards it, seizes several hundred cases of alcoholic beverages either bound for Europe as cargo or kept for the use of the officers and crew, and requires the master to pay a fine for unlawful importation of alcohol before the ship is allowed to proceed. When the coast guard officers board the ship, Degree angrily protests their action, saying they have no ground to do so; although he made no physical threat or approach to them, one of the officers knocks him down with a rifle butt, severely injuring him.
Buddhistan asserts a claim against Franconia for wrongful exercise of coastal-state jurisdiction, as well as for Degree's injuries, invoking a bilateral treaty between the two countries whereby they agreed to submit all disputes which might arise between them to arbitration, such arbitration to be governed by general international law. How should the arbitrator rule? Explain.