Nova Southeastern University: April 30, 1998

1. Students may bring in a copy of the Reading handout booklet. Short notes may be made in the margins. Students may bring in photocopies handed out in class. Students may bring in a copy of this handout, "preparation for the final examination" and put handwritten notes on the front and back of the pages.

During the examination, the examiner will look through all materials brought in. Should the examiner, in his absolute, complete and unfettered discretion, deem any written notes contained on the photocopies to be excessively detailed, he may confiscate the photocopy forthwith.

Question 1 (15 points)

(1)a. How did the International Court of Justice obtain jurisdiction to hear the North Sea Continental Shelf Case and who were the parties to the dispute?

(1)b.  Can  a  person  be  a  party  to  a  dispute  before  the International Court of Justice?

(1)c. What are the two major sources of international law?

(2)d. In regard to custom (one of the sources of international law), explain the difference between State Practice and Opinio Juris.

(3) e. What is the difference between a rule of customary international law which crystallizes contemporaneously with  a treaty  and a rule of custom which  crystallizes  subsequent to the signature and ratification of a treaty.

(7)  f.  Country A has not signed the Geneva  Convention  on  the Continental Shelf.

Country B has signed and ratified the Geneva Convention on the Continental Shelf.

Country C has signed and ratified the Geneva Convention on the Continental Shelf.

Country D has signed and ratified the Geneva Convention on the Continental Shelf, but lodged a reservation concerning the application of Article 6, the Equidistant principle.

In a dispute over the application of the equidistant principle to the division of the Continental Shelves:

i. As between A and C, is there a treaty obligation?

ii. As between C and D, will customary rules or treaty rules solve the dispute? Why? or Why not?

iii. As between B and C, how would a court settle a dispute?

iv. What is a reservation to a treaty?

 QUESTION 3 (15 Points)

a.  In  1988,  the United Kingdom parliament passed  a  law,  (a domestic statute) the Customs Act, which permitted coast  guard officials  to board and search all vessels which were found  up to fifteen miles from the coast.

In  1989,  the  United Kingdom signed a treaty  with  the  United States.  One  of  the terms of the treaty  stated  that  the United States government agreed that it would not search or seize British ships beyond a distance of three miles from the coast. The British government agreed also not to search or seize American ships beyond three miles.

The  American  sailing ship, the 'Stephen  Ross',  was  located four  miles from the British coast. It was seized  in  April of  1990. The customs officials of the United  Kingdom  were

surprised  to find that there were one thousand bottles  of liquor  aboard. The liquor was not listed on the  manifest.

It  was  a provision of U.K. law that foreign  ships  sailing within  fifteen miles of the coast had to list all goods on  the manifest. Any goods not listed on the manifest were subject  to

forfeiture.  The  captain was subject to ten  thousand  pound fine.

Stephen Levitt, the captain of the Stephen Ross, argues that, according to the terms of the 1989 treaty, his boat should not have been searched. According to the terms of the 1989 treaty, the search was illegal.

What will a British court decide?

What  would  a Dutch court decide, assuming that Holland  were  a party to the 1989 treaty, and the ship were found off the Dutch coast at a distance of ten miles?

b. Please assume the same fact pattern, however the Ross Levitt is a British ship off the coast of Florida.

It is seized at a distance of 10 miles from the U.S. coast.

U.S. law, the Custom's Act, 1990, permits the U.S. Coast Guard to seize any vessels within 12 miles of U.S. territory.

The Court deems the 1989 treaty to be a self executing treaty.

Will the seizure of the ' Ross Levitt' be considered a legal seizure this time? Why or why not???

c. Please assume the same fact pattern as noted above save and except that the Court decides that the 1989 Treaty with the United Kingdom is a non-self-executing treaty. Will the seizure of the 'Ross Levitt' be considered a legal seizure?

d.  If there anything which the U.K government might do  to  help Stephen  Levitt  if the American courts will not  grant  him  the relief that he seeks?

d. The ' Ross Levitt' then sails toward Canada. While in international waters, twenty miles from the Canadian coast, the crew begins fishing for salmon. It is October. Canadian law forbids fishing for salmon in October.

The Canadian statute reads:

Any vessel found fishing in October for salmon at any distance up to fifty miles of the Canadian coast shall be

seized by the Coast Guard and subjected to a fine of $100. Said seizure and fine will be valid, even when said boat is

deemed located in international waters.

Stephen Ross Levitt, the owner of the 'Ross Levitt', comes to court and tells those dumb Canadians that due to the fact that his boat was seized in international waters, contrary to rules of customary law, he should not be forced to pay this fine.

d. What will the Courts do? What rules of law are in conflict? How will Canadian courts resolve this conflict?

e. What would British or American courts do if faced with the same situation? What would a German court do if faced with the same situation?

Question 4 (15 points)

a. The kingdom of Great Britain signed and ratified the Geneva Convention of 1958 on the Continental shelf. Holland and Denmark signed and ratified the Geneva Convention of 1958 on the Continental Shelf. All of these three nations lodged reservations against the application of the equidistance principle contained in article 6.

In discussions concerning the continental shelf between Britain and Denmark Britain argues it is not bound to follow the equidistant principle, because the equidistant principle has not crystallized into a customary rule of international law.

Denmark maintains that Britain has no choice and must abide by the equidistant principle as expressed in the Geneva treaty which binds the parties.

Which nation is correct and why? What is the relationship between customary international law and treaty law in the event of a conflict?

Let us assume that in 1998, Levitania, Scheuflerland and Hawsmark are situated along the Megalomania Sea in a similar geographic pattern respectively to Holland, Germany and Denmark. Scheuflerland, which has the most irregular coastline, argues that its section of the Megalomania Sea should not be established according to the Equidistant principle. Further, the government argues that according to the North Sea case, the equidistant

principle, as expressed in Article 6 of the Geneva Convention, is not a binding rule of customary international law.

Levitania, Scheuflerland and Hawsmark have all signed the Geneva Convention.  Hawsmark  and Levitania have ratified  the  Geneva Convention.   Scheuflerland   has  not   ratified   the   Geneva Convention.

What should be the result if this case is taken to the International Court of Justice? (Remember there are three parties- that means two delineations!!)

Scheuflerland has said the following. Assess the validity of the statement:

"According to the holding in the North Sea Continental Shelf Case there is no rule of customary international law which requires that a continental shelf be divided according to the equidistant principle. Therefore, we want an equitable share of the oil deposits at the bottom of the sea."

b.  The  'Best  Chocolate' is a Belgian ship.  It  sails  from Belgium to the United States and is docked in Jersey City, New Jersey. While docked, Stephen Van Ross, has a fight with another Belgian  sailor,  and kills him. The American  police  learn  of this crime and arrest Van Ross.

There is a treaty dated February 18th, 1981 between Belgium and the United States concerning crimes committed aboard a ship while in port.

Article XI of this treaty states:

Courts will not take jurisdiction over Belgian

nationals who commit crimes aboard Belgian ships

while said ships are in an American port. However, if the

The Belgian Consul General brings a habeas corpus action; he demands that Van Ross be released to him in order to stand trial in Belgium.

a. Why have the police of the United States arrested Van Ross when he committed a crime aboard a Belgian ship? ( What is the basis of jurisdiction?)

b. If Van Ross would be released to the Belgian officials, upon what   basis   (bases)   might  the   Belgian   courts   exercise jurisdiction?

c. What will an American court decide ? Explain how the court will resolve this matter. If you are making any assumptions about the nature of the treaty of February 18th, 1981, state them.

 Question 5 (15 points)

Levitt, a German national, is now involved smuggling heroin into the  United  States in the 1990's. He resides and works  out  of Toronto. He has never visited the United States since that  nasty incident in 1989. He hires Mr. Norega in Toronto to pick up  the drugs in Mexico and deliver them to a contact in Vermont.

American authorities arrest Norega at the Mexican American border.

American authorities seek the extradition of Levitt.

Canada refuses to extradite Levitt. Rather he is placed on trial in Canada.

The Canadian Narcotic Control Act reads:

Section (1) No person shall traffic in a narcotic.

Section  (2) No Canadian national shall conspire to traffic in  a narcotic.

 Every person who violates section (1) or (2) is guilty of an indictable offense and liable to imprisonment for life.

Section (3) No Canadian resident shall conspire to import or export a narcotic into the United States.

Section (4) No person shall conspire to transport or engage in transporting a narcotic substance across any international border. Any person who has engaged in a conspiracy to transport or the transportation of narcotics across any international border shall be arrested in Canada. He will be treated as an enemy of all mankind and subject to trial in Canada and punishment as outlined in this Part.

Every person who violates section (3) or (4) is guilty of an indictable offense and liable to imprisonment for life.

Levitt is charged in Canada with violating sections (1), (2), (3)  and (4) of the Narcotic Control Act.

What is the basis of jurisdiction for each of these sections: (1) (2) (3) and (4)?

Explain all your answers clearly and logically.

Assuming Levitt is guilty of drug smuggling, will he be convicted by a Canadian court under all four sections, or maybe only  some of the sections.

d. Assume the same fact pattern. The Canadian government decides to extradite Levitt to the United States. According to what principle of jurisdiction will Levitt be tried in the United States?

e. After lengthy investigations, it is found out in the United States, that during the Second World War Levitt committed war crimes. The German government hears of this and seeks his extradition.

Levitt is put on trial in Berlin. He tells those dumb Germans that:

i. The German statute of limitations for murder is thirty years. He killed lots of people in the 1940s- However that was more than forty-nine years ago; therefore a prosecution in 1996 is barred.

ii. He lived in Canada for more than thirty years. The Germans cannot put a Canadian resident on trial for war crimes.

iii. All the victims were Poles, Ukrainians, and Russians. Germany cannot put Levitt on trial for murders committed in occupied Poland, or Russia. He committed no crimes on German soil.

Is Levitt right?

6. The German government decides to return Levitt to Canada.

There is in Canada the following statute:

Section 1:

"Canadian residents and nationals may be subject to prosecution in Canada for war crimes they committed in Eastern Europe during the Second World."

Section 2:

"Killing civilians during an armed conflict without justification is considered a war crime and is punishable by twenty-five years imprisonment."

Levitt says there's no basis of jurisdiction which can justify this statute. Is he right? Levitt says in 1944, he was in occupied Poland and he was a German national. What is the connecting factor which permits a Canadian court to hear evidence about horrors committed in occupied Eastern Europe? Canadians weren't the victims. It didn't happen on Canadian territory.

Question 6 (15 points)

In the Nuremberg judgment it is stated:

"It was submitted that international law is concerned with the actions of sovereign states and provides no punishment for individuals; and further that where the act in question is an act of state, those who carry it out are not personally responsible, but are protected by the doctrine of the sovereignty of the state. In the opinion of the Tribunal, both these submissions must be rejected. That international law imposes duties and liabilities upon individuals as well as upon states has long been recognized.

The very essence of the Charter [of the International Military Tribunal] is that individuals have international duties which transcend the national obligations of obedience imposed by the individual state. He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the state, if the state in authorizing action moves outside its competence under international law

Discuss

I am expecting some mention of:

a. Article 7 of the Nuremberg Charter (page 313 of your book)

b. International law in the 19th century

c. Monist/Dualist conceptions of international law

d. relation to cases we have discussed in class such as Mortensen v. Peters

e. Last sentence of Article 6 c - (page 312)

Question 7 (10 points)

Part 1

Define the term "Crimes against Humanity" as it was understood by the International Military Tribunal paying particular attention to the phrase:

"in execution of or in connection with any crime within the jurisdiction of the Tribunal."

Part 2

What is the significance of the last phrase in the definition of Crimes Against Humanity:

"whether or not in violation of the domestic law of the country where perpetrated."

Part 3

Consider the following paragraph from the judgment below and discuss its significance. What legal issue is raised and how does the Tribunal resolve it?

"A further submission was made the Germany was no longer bound by the rules of land warfare in many of the territories occupied during the war, because Germany had completely subjugated those countries and incorporated them into the German Reich..."

"In the view of the Tribunal it is unnecessary in this case to decide whether this doctrine of subjugation, dependent as it is upon military conquest, has any application where the subjugation is the result of the crime of aggressive war. The doctrine was never considered to be applicable so long as there was an army in the field..."

Question 8 (15 points)

Crimes Against Peace

What is a crime against Peace as defined by the Charter of the Nuremberg Tribunal?

How is this related to the Kellogg Briand Pact? ( page 306) (Article II)

Consider this famous paragraph from the Judgment:

"It was urged on behalf of the defendants that a fundamental principle of all law- international and domestic- is that there can be no punishment of crime without a pre-existing law. "Nullum crimen sine lege, nulla poena sine lege." It was submitted that ex post facto punishment is abhorrent to the law of all civilized nations, that no sovereign power had made aggressive war a crime at the time that the alleged criminal acts were committed, that no statute had defined aggressive war, that no penalty had been fixed for its commission, and no court had been created to try and punish offenders."

What were the legal arguments being raised by the Defendants in the above referenced paragraph?

How did the International Military Tribunal respond to these arguments on pages 363, 364, 365, and 366 of your international law booklets (pages 462 -468 according to the pagination in the document)?

Could you resolve these issues in a different way from the judges on the International Military Tribunal ? Could another legal approach be taken in terms of defining more narrowly "crimes against peace" or "planning an aggressive war"?