Nova Southeastern University: May 1st, 1997 Notes and Directions:

1. The final examination consists of seven questions. Five questions, administered in class, are worth 70 points, and two take home questions are worth 30 points. 2. 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. When will the International Court of Justice have jurisdiction to hear a dispute? (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 is codified in a treaty and a rule of custom which crystallizes subsequent to the signature and ratification of a treaty.

(7) f. Country A has signed and ratified the Geneva Convention on the Continental Shelf. Country B has signed and ratified the Geneva Convention on the Continental Shelf. Country C has signed but not 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 A and B, how will the I.C.J. solve the dispute?
 

QUESTION 2 ( 10 Points) a. In the British case, Mortensen v. Peters, the Lord Justice General states: "In this Court we have nothing to do with the question of whether the Legislature has or has not done what foreign powers may consider a usurpation in a question with them. Neither are we a tribunal sitting to decide whether an Act of the Legislature is ultra vires as in contravention of generally acknowledged principles of international law. For us an act of Parliament duly passed by Lords and Commons and assented to by the King is supreme, and we are bound to give effect to its terms." What is the meaning of this passage? What will Anglo-American courts do when confronted with a domestic statute which is violative of principles of customary international law? You may also wish to consider Lord Atkin's statement in Chung Chi Cheung v. R.: "It must always be remembered that so far, at any rate, as the courts of this country are concerned, international law has no validity save in so far as its principles are accepted and adopted by our own domestic laws. There is no external power that imposes its rules upon own code of substantive law or procedure. The courts acknowledge the existence of a body of rules which nations accept amongst themselves. On any judicial issue, they seek to ascertain the relevant rule, and, having found it, they will treat it as incorporated into the domestic law, as far as it is not inconsistent with rules enacted by statutes or finally declared by their tribunals". b. Consider the film, Justice at Nuremberg. How could the defendants in the "Justice Case" have used the statements in Mortensen and Chung Chi Cheung in their defense? Remember the defendants in the "Justice Case" were either judges, prosecutors, or officials in the Ministry of Justice. In light of this argument, what exactly had the defendants done which permitted Military Tribunal Number 3 to find them guilty? What had the judges done?
 

QUESTION 3 (15 Points) a. In 1926, the United States Congress 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 1924, the President had signed a treaty, which was ratified by the Senate. 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 sailing ship, the 'Stephen Ross', was located four miles from the coast. It was seized in April of 1928. The Customs Officials of the United States 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.S. 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 dollar fine. p73 Stephen Levitt, the captain of the Stephen Ross, argues that , according to the terms of the 1924 treaty, his boat should not have been searched. According to the terms of the 1924 treaty, the search was illegal. Using the principles of the Frank Cook case, will this be a 'legal' seizure? Explain clearly why the Court will come to its decision. b. Please assume the same facts however in March of 1929 the President again signs a Treaty with the United Kingdom. The Court deems this treaty to be a self executing treaty. In December of 1929, Levitt has not learned his lesson. The 'Stephen Ross' is again caught transporting liquor products which were not listed on the manifest. The boat was seized five miles from shore. Will the seizure of the 'Stephen Ross' be considered a legal seizure this time? Why??? c. Please assume the same fact pattern as noted above save and except that the Court decides that the 1929 Treaty with the United Kingdom is a non-self-executing treaty. Will the seizure of the 'Stephen Ross' be considered a legal seizure?

d. The 'Stephen Ross' 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 'Stephen Ross', 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.

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. None 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 treaty which binds both 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. Scheuflerland and Hawsmark have ratified the Geneva Convention. Levitania 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.

" 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 sailer, 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:

"The United States government agrees that its Courts will not take jurisdiction over Belgian nationals who commit crimes aboard Belgian ships while said ships are in an American port. All Belgian nationals who commit crimes aboard Belgian ships in American ports will be surrendered to the Belgian Consul-General. There are absolutely no exceptions to this rule.

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 is 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, who smuggled liquor into the United States in the 1930's, 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 1929. 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. Part 1 of the Canadian Narcotic Control Act reads:

(1) No person shall traffic in a narcotic.

(2) No person shall conspire to traffic in a narcotic. Every person who violates subsection (1) or (2) is guilty of an indictable offense and liable to imprisonment for life.

Part 2 of the Narcotic Control Act has just been added.

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

(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 subsection (3) or (4) is guilty of an indictable offense and liable to imprisonment for life. .

Levitt is charged in Canada with violating subsections (1), (2), and (4) of the Narcotic Control Act. He is convicted under sections (2) and (4). He is sentenced to a prison term of twenty years. a. Why is he not charged with violating subsection (3) ? b. Why is he not convicted for a violation of subsection (1) ?

c. According to the language used in subsection (4) upon what basis is jurisdiction being taken over the crime of international drug smuggling? Explain all your answers clearly and logically. 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. Further, he has renounced his German citizenship. 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? f. 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.