ST. THOMAS UNIVERSITY SCHOOL OF LAW
PROFESSOR SIEGFRIED WIESSNER
DECEMBER 18-20, 1993
IN TAKING THIS EXAMINATION YOU ARE REQUIRED TO COMPLY WITH THE SCHOOL OF LAW RULES AND PROCEDURES FOR FINAL EXAMINATIONS. YOU ARE REMINDED TO PLACE YOUR EXAMINATION NUMBER (= YOUR ANONYMOUS GRADING NUMBER) ON EACH PAGE OF YOUR EXAMlNATiON, AND SIGN OUT WITH MS. MARIELA TORRES, SUBMITTING TO HER YOUR EXAMINATION AND THE QUESTIONS AT THE CONCLUSION OF THE EXAMINATION.
1. The text of the final examination will be handed out to you on Saturday, December 18, 1993, at 12:00 noon in the Moot Court Room. You will confirm, by your signature, the receipt of the examination. The signature sheet will be turned over to the Registrar after the distribution of the examination.
2. IN YOUR ANSWERS, YOU ARE LIMITED TO FIFTEEN (15) TYPED PAGES, DOUBLE-SPACED WITH ONE INCH MARGINS AT THE TOP, BOTTOMS AND SIDES OF THE PAGE. THE TYPEFACE YOU USE MAY NOT EXCEED TEN CHARACTERS PER INCH. Concise answers are rewarded. Any writing beyond the first fifteen pages will be disregarded in determininq the grade.
3. You will have to return the completed examination by Monday, December 20, 1993, 5:00 p.m. to Mariela Torres, Administrative Assistant to the Faculty, in the faculty suite. She will keep the exams in a separate box. You will confirm, by your signature, that you turned in your exam. Ms. Torres will hand that signature sheet over to the Registrar immediately after the deadline for submitting examinations has passed.
4. No exam will be accepted after Monday, December 20, 1993, 5:00 p.m.
5. This is an open-book exam. You may use any materials you find helpful. However, this examination is designed to test your individual performance, not the performance of a study group or any other collective effort. You have to write your own, individual examination.
6. This examination consists of four (4) pages and five (5) questions. The questions are of equal weight.
7. Read all questions carefully. Outline your answer before you write. Credit is given for your analysis and organization.
8. Answer all questions. Do not assume additional facts or information other than those given in the question(s).
9. Please write only on one side of the page, and leave a generous margin for grading purposes .
10. Put your anonymous grading number on each typed page, number each page, staple the exam, and turn in your copy of the examination with your typed pages.
11 . GOOD LUCK!
1. (20% of grade)
In 1845, the former South American colony, Riboreta, obtained its independence from Spain. A fisherman from Riboreta landed his small boat on a tiny island in the Pacific inhabited by a small tribe of primitive peoples. He proclaimed the island "Paradiso," claimed it for Riboreta by planting his nation's flag in the ground, and departed. Upon returning to Riboreta, he reported his "discovery" to the Ministry of Foreign Affairs, which informed the Navy. It, in turn, upon locating what it believed to be the island on a map, sent a Navy vessel to the island and occupied it for two months. Thereafter, occasional visitors from Riboreta arrived, a building was erected called "Hotel de Ville," and a governor general took up residence. In 1928, the building burned to the ground, the Governor General departed, and the small colony of Riboretans steadily diminished until it vanished.
In 1985, a group of American geologists from the Exploit Petroleum Corporation surveyed the island and recommended that drilling be commenced on it and its continental shelf. A major oil field was discovered, whereupon the United States Navy arrived, established a base and claimed the island as U.S. territory, saying it was part of a group of islands over which the United States claimed sovereignty.
A contingent of the indigenous peoples of the island marched to the naval installation, and with their chief as spokesman, demanded that the Americans depart. Calling themselves the Paradiso Liberation Organization (PLO), they declared themselves the "sole representatives of the Paradisan people." Having never before done so, the Paradisans declared themselves an independent country and applied for membership in the United Nations.
Riboreta immediately objected, claiming the island as an "integral part of the nation of Riboreta." Riboreta also warned the United States that if it failed to withdraw from the island, Riboreta would "take whatever steps might be necessary to restore the territorial integrity of Riboreta." It declared the oil fields "nationalized," intercepted an Exploit tanker carrying oil from Paradiso headed for San Diego, California, and sold the oil to the Behemoth Fuel Company of Hoboken, New Jersey, without paying any compensation to Exploit. The oil arrives in San Diego. Both Behemoth and Exploit claim title to it in federal court.
You are working as an attorney in the Office of the Legal Adviser of the United States Department of State. The Legal Adviser, Carl Guttenberg V, has summoned you to his office and assigned you the task of telling him ali the legal implications of the above facts, and who is likely to prevail in which disputes.
II. (25% of grade)
1. In 1988, a U.S.-registered airplane exploded over the high seas, with mainly U.S. and British citizens aboard. All the passengers died. After years of thorough investigation by, inter alia, Scotland Yard and the FBI, Mr. Darth and Mr. Vader, citizens and residents of the country of Transsylvania, were indicted by a grand jury of the United States District Court for the District of Columbia. They were charged with having placed a bomb aboard that flight, the bomb which, by its explosion, caused the plane to disintegrate and crash.
The United States asked for the extradition of Darth and Vader. Under the terms of the extradition treaty between the United States and Transsylvania, nationals are exempt from extradition. Consequently, Transsylvania refused to extradite Darth and Vader, a decision that was also mandated by its constitution. However, af;er being apprised of the charge, Transsylvania ensured the presence of the accused on its territory, initiated a preliminary inquiry into the facts and submitted the case to its competent authorities for prosecution. It sought judicial assistance from the United States in connection with its own criminal proceedings, with the competent Transsylvanian authorities offering to cooperate with the investigations in the United States, but the United States and its law enforcement authorities refused to cooperate with the Transsylvanian investigations.
The United States and the United Kingdom seized the United Nations Security Council with the Transsylvanian problem. The Security Council first "urged," then "decided" under Chapter Vll of the United Nations Charter, that the Transsylvanian Government had to comply fully and effectively with the request of the United States to surrender Darth and Vader for trial. If a certain deadline for the extradition was missed, mandatory economic sanctions were to kick in.
Transsylvania's government is outraged about its treatment by the Security Council. The Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation done at Montreal on September 23, 1971 ("Montreal Convention"), to which both the United States and Transsylvania are parties, only requires the contracting parties to either extradite or prosecute the offenders (cf. Article 7). Under Article 14, paragraph 1, of the Montreal Convention in connection with Article 36, paragraph 1, of the Statute of the International Court of Justice, the Transsylvanian Government sees the jurisdiction of the World Court established. It asks the Court for interim measures of protection, including an order to enjoin the United States from taking any action against Transsylvania calculated to coerce or compel Transsylvania to surrender the accused individuals to any jurisdiction outside of Transsylvania.
Will the Court grant the requested relief? Discuss the pros and cons of the respective roles of the Security Council and the International Court of Justice.
2. A few weeks later, the United States conducts a sophisticated commando raid within Transsylvania which spirits Darth to the United States. Darth stands trial in the United States District Court for the District of Columbia. The first issue is the court's jurisdiction over Darth. Will his indictment be dismissed?
III. (20% of grade)
World market prices of nickel, cobalt, manganese, and copper have gone up; thus, business interest in the nodules of the ocean floor has picked up again. Deep Sea Ventures, Inc., a Delaware company, applies for, and receives, a license from the United States Government to explore and exploit a certain segment of the deep sea bed (field "X") in the Pacific Ocean. This United States license is recognized by a couple of other highly industrialized countries who have agreed, in a so-called "minitreaty," to recognize each other's licenses to mine the ocean floor beyond a coastal state's jurisdiction on the basis of reciprocity.
Under the deep sea-bed mining regime of the 1982 United Nations Convention on the Law of the Sea, an international agency of universal character and reach, the International Sea-Bed Authority, is supposed to administer the exploration and exploitation of the deep sea-bed with a view toward equitably sharing the benefits of the use of these resources. (Assume for the purposes of this question that the 1982 Convention has just entered into force, and that the International Sea-Bed Authority is functioning.) After hearing about the United States' grant of a license to Deep Sea Ventures, the Authority authorizes field "X" to be explored and exploited by the People's Republic of China in accordance with the goal of equitable sharing.
Both the United States and China try to avoid a military confrontation over who has better rights to field "X." They agree to submit the dispute to the International Court of Justice in The Hague.
You are a clerk to the Court in The Hague and have been asked to draft a memorandum on this case. Please proceed.
IV. (20% of grade)
Anthony was born in 1940 as the son of Portuguese settlers in a Portuguese colony in Southeast Asia. Under the rule of ius sanguinis, he acquired Portuguese citizenship even though he had never set foot in Europe. After a protracted armed struggle, the colony, in 1980, gained independence under the name of Shangri-La. Shangri-La has not yet enacted legislation specifying under what conditions Shangri-La's citizenship is acquired or IQst. Anthony paid taxes to the Shangri-La Government, travelled freely in and out of the country, owned farmland, and fulfilled his statutory duty of military service. Anthony was, however, not allowed to vote or stand as a candidate in the 1982 and 1986 parliamentary elections.
Disappointed about that treatment, Anthony, in 1987, transferred part of his assets and himself to the neighboring country of Kahlua. He opened up a business of 50 ice cream parlors franchised throughout that country. Under Kahlua's nationality legislation, any alien acquires Kahluan nationality simply by opening up a business in Kahlua. In 1988, Anthony's ice cream fame spilled over into another neighboring country, Pandora, and he opened 20 parlors there.
In 1993, Shangri-La and Pandora get into a dispute over the exact delineation of their mutual border. This conflict escalates into open war. Pandora confiscates Anthony's businesses and interns him as an enemy alien. Anthony considers himself a Kahluan national who should not have been subjected to this treatment. He turns to you for advice on how to get his property back, and how to receive compensation for his unjustified detention.
V. (15% of grade)
An election took place in Rahiti which swept a populist priest by the name of Father Beristide to power. A couple of months into his presidency, Father Beristide was ousted by the military with the support of important members of the business elite. General Ironfist, the new de facto ruler of Rahiti, established a military dictatorship characterized by the pervasiveness of fear; any inkling of dissent was quelled by very public examples of killing or forced disappearance of dissenters. Rahiti is a member of the United Nations and the Organization of American States. It has ratified, inter alia, the 1969 Inter-American Convention on Human Rights.
You are the National Security Adviser to President Clinton. He asks you for a memorandum on the international legal options, both collective and unilateral, that are available to bring about a restoration of democratic government, and an end to the flagrant and widespread human rights abuses.