of University Massachusetts Amherst Fall 2006 THE PROBLEMS
Political Science 356 M.J. Peterson
15 Sept. Exercise: Riot Control research hint: the full text of the CWC is available via http://disarmament.un.org/TreatyStatus.nsf On August 24th 2006 Police in Nella City, Varna used water hoses and tear gas to break up a large crowd that had gathered along Embarcadero Avenue near the beach after a rock concert and was still in the area singing and bouncing on cars two hours later. Local human rights activists used their websites to complain that use of tear gas violates Varna's obligations as a party to the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (the CWC). The police commissioner wants to respond to the allegations but knows his department lacks sufficient expertise on the matter. She has contacted the Foreign Ministry for advice. You are a member of the foreign ministry legal office. Prepare a one-page memo for the police commissioner on the legality of using chemicals for riot control under the CWC. 20 Sept. Problem 1 The Linna Hills (Group 1) Vienna Convention on the Law of Treaties (e-reserve) In May 1986 the governments of Beringia and Imnar agreed that the segment of their boundary running through the Linna Hills should be drawn so that all streams flowing into the Uto River, which meets the sea on the Beringia coast, are included in the territory of Beringia and all streams flowing into the Nahl River, which meets the sea on the Imnar coast, are included in the territory of Imnar. They appointed a joint commission to demarcate the boundary. Based on hydrological surveys the commission concluded that streams on both sides of Balde Hill flow into the Nahl, and therefore included the whole hill in Imnar's territory. In mid-2004, the Beringian Ministry of Forests bought a set of highly detailed satellite images plus corresponding raw data files of the Linde Hills area from the French SPOT consortium to complete a land use survey of the area. A close look at the hydrological maps derived from the raw data indicated that streams on the east side of Balde Hill were running into the Uto rather than the Nahl. News reports about the hydrological images inspire some members of the Beringian Parliament to demand that the government claim the segment of Balde Hill covered by these streams. The foreign minister knows that those MPs will raise the matter during next week's question time, and wants to be ready with an answer to the question of whether Beringia can legally claim the area. You are the foreign ministry legal adviser. Prepare a memo for the foreign minister explaining why Beringia can or cannot legally claim the area.
27 Sept. Problem 2: Allin and others v. Interior Ministry of Sedda
(Group 2)
In 2003 Shu Allin, Ole Nossum, and Lem Omun, all citizens of Prova, were hired on five year contracts to work as engineers for the Sedda National Railways. In August 2005 they were
Political Science 356,
2006 Problems
page 2
arrested on suspicion of aiding criminals engaged in drug trafficking, and kept in prison for three weeks without being allowed to contact anyone. In early September they were released, fired from their jobs, and deported to Prova. The three claim not only that their right to a trial had been violated but that they were tortured while in prison. They sought to sue the Interior Ministry in Prova courts, arguing that Prova, as a party to the Convention against Torture, could take jurisdiction over the matter. Lawyers for the Sedda Interior Ministry challenged the three's claims to have been tortured but also emphasized that the Prova State Immunity Act of 1993, modeled on the United Kingdom State Immunity Act 1978, covers this case. The three plaintiffs argue that allowing Sedda and its officials immunity from suit would violate a jus cogens norm that torture should be suppressed and victims of torture compensated. You are the Provan judge hearing the case. Write a memo reporting your ruling. 4 Oct. Problem 3: NovaGas (Group 3)
In 1998, the governments of Septima and Canada negotiated a Bilateral Investment Treaty. In early 2000 the Septima State Oil Company, which lacked sufficient technology and know-how to do the work itself, invited bids on a contract to explore for and exploit any natural gas deposits found on its continental shelf. The contracts specified a flat fee payment for exploration activity, and a cost-plus method of payment for exploitation, with the contractors' costs to be audited by the Septima Central Bank's Audit Department. In late 2000, NovaGas, a Canadian firm won the contract. NovaGas found a significant natural gas deposit in 2002, built drilling platforms, and began producing natural gas in May 2003. In October 2003 the Septima Congress adopted several changes to tax laws, including provisions that increased the value added tax (VAT) from 3% to 5% and allowed manufacturers to get refunds of VAT paid on goods that were exported. In 2005, NovaGas's efforts to get refunds of VAT on natural gas exported were rejected by the Septima appeals court and the Septima Supreme Court determined that the appeals court decision should stand. NovaGas believes that Septima tax authorities acted wrongly in refusing to refund the VAT, and is considering going to arbitration as provided for in the Canada-Septima BIT. You are house counsel for NovaGas. Write a memo for the CEO giving your advice about whether NovaGas would have a reasonable chance of getting its claim for VAT refunds upheld by an arbitration panel. 11 Oct. Problem 4: Nuez v. Republic of San Marco (Group 1) research hint: there is at least 1 similar proceeding in the European Human Rights Court Calo Nuez, is the ten year old son of Atla parents living in San Marco City rather than the Alta ancestral home area in the Central Mountains. After having serious difficulty in school, he was reassigned to a special education class at Mora Elementary School. His parents became concerned about this after friends told them that few children placed in special education go on to high school. They became even more concerned when they heard about a report by the San Marco Indigenous Rights League (IRL) claiming that 90% of the students in the special education classes at Mora were members of indigenous groups and that in most cases the placement was done to limit the indigenous to low-paying jobs.
Political Science 356,
2006 Problems
page 3
The IRL has been trying to challenge the placements into special education in the San Marco courts, but they ruled in late 2005 that under San Marco's Education Acts placement decisions are reviewable by the Ministry of Education rather than the courts. The Ministry is showing no interest in reviewing the allegations. In May 2006, the IRL recruited Calo's parents as complainants to the Inter-American Commission on Human Rights and submitted a complaint that the special education placements violate Articles 19, 24, and 26 of the American Convention on Human Rights. The Inter-American Commission has determined that the claim is admissible and proceeded to considering the merits of the complaint. The IRL makes the arguments noted above. The Government of San Marco argues that the placement decisions have been made according to accepted educational criteria and provide a copy of the file on Calo's case noting his previous difficulties in reading and math. You are a member of the Commission. Write a memo outlining how you think the complaint should be decided for circulation to your fellow commissioners. 23 Oct. Problem 5: Roadwork (Group2)
The Republic of Cylla is a member of the African Union and party to the Banjul Charter. In mid 2006 the major cities faced serious food shortages because local roads, most of which are unpaved, have become impassible in several provinces and farmers cannot transport their harvests to market. Ministry of Transport planners suggest speeding up the repair work, much of which will involve digging out high places, using the dirt to fill in ruts, and re-tamping the surface, by requiring all physically able teen-aged and adult males to spend each Saturday in October helping ministry road crews repair the roads. In 2003-04, news stories about the country had publicized allegations that slavery was still practiced in Cylla. The government took action against some of the most flagrant violations, and the publicity died down. When they hear about the Ministry's proposal, some of the president's advisers worry that adopting the scheme might revive the allegations that Cylla tolerates slavery, which would make it even harder for Cylla to get loans for improvement of roads and railways. You are a lawyer who is one of the president's special assistants. Write a memo for the president indicating whether the scheme would be regarded as violating international norms against slavery and other forms of involuntary servitude. 27 Oct. Problem 6: Negraasi Diamonds (Group 3)
The neighboring states of Kumasi and Negraasi are significant producers of diamonds, which are found in an area straddling their mutual border. Kumasi maintains diamond mining as a state-owned sector and sells rough diamonds through its Diamond Marketing Board. Negraasi allows DeBeers Negraasi, a subsidiary of the DeBeers Corporation of South Africa, to operate the mines and sell the rough diamonds through its parent corporation's marketing agency in return for tax and royalty payments to the government. Both countries are members of the African Union and the United Nations. Their relations have alternated between cool and hostile since the late 1980s when Negraasi provided aid to antigovernment rebels in Kumasi, leading Kumasi forces to occupy a 10 mile wide strip of Negraasi for a few months in 1988, and then to reinforce outposts on its own side of the border. Negraasi also increased its army's presence in its part of the area.
Political Science 356,
2006 Problems
page 4
In 2001 Jamin Korwena, who had installed himself as President of Negraasi in 1970 after leading a military coup against his predecessor, was overthrown by a new generation of officers unhappy with various failed development schemes and his habit of reserving the most lucrative government contracts for members of his large extended family. The new rulers began a purge focused initially on Korwena's kin but then extending to his other, predominantly Lau, supporters. This turned into a larger ethnic conflict because other members Lau believed rumors that the primarily Tanti officer corps were planning genocide against them. At the new Negraasi government's request, the African Union mediated a truce between the Lau and the Tanti in May 2002. Detachments from neighboring states, including Kumasi, came into Negraasi to help monitor the truce while the Negraasi army ran the control points at which Lau and Tanti fighters surrendered their weapons. Kumasi troops were assigned to monitor activity in an area including the diamond mines. Continuing instability led many of the miners to leave the area, significantly reducing diamond production. In February 2003, rumors began to circulate that Kumasi troops had effectively taken over the mines and were diverting rough diamonds to their own country for sale. Though the truce agreement specified that foreign detachments should leave Negraasi by the end of 2004, renewed fighting, this time between political factions led by Jolo Arwani and Meki Seeku, prompted a delay. This fighting ended in April 2005 when the Arwani faction split and several of its key members went over to the Seeku faction. The rest fled the country. The triumphant Seeku faction then asked for withdrawal of all foreign troops. Kumasi troops withdrew from the territory in May. A month later the DeBeers Negraasi managers finished assessing conditions in their They mines. estimated that at least $3 million worth of rough diamonds had been removed from storage areas and mine shafts between 2003 and 2005. You are house counsel to DeBeers, and have been asked to look into potential legal remedies against either the government of Negraasi or the government of Kumasi. Write a memo for the CEO providing advice regarding how to proceed. 27 Oct. Problem 7: The Bolin Strait Bridge (Group 1)
The Bolin Strait is a 15 nautical mile wide body of water separating the two parts of Janna the large offshore Saloe Island and the mainland to the southeast. The Strait is used by ships from many countries because it cuts the sailing time between Janna's main ports and other countries by close to a day and affords protection from the sometimes fierce winds and tricky currents on the seaward side of the island. Until the late 20th century few people lived on Saloe Island because it was rocky and poorly adapted to farming. Since the discovery of natural gas deposits on the continental shelf north of the island in the 1980s and greater use of its wind power potential for light industry since 1995, the population has grown considerably. While old-timers are content with the existing ferry service, the newcomers, particularly the industrial enterprises, have been lobbying hard for construction of a bridge. In March 2006 the Janna Ministry of Transportation issued a "Notice of Proposed Construction" through the government's Official Gazette and its own website outlining plans to build a fixed span road and rail bridge rising from the mainland to a peak area 70 meters above the water level in the Strait and then descending to the island. Most ships will be able to pass under the bridge without difficulty, but newer drill ships with superstructures 70-90 meters high and partly-assembled offshore gas platforms being towed from Offshore Rigs Ltd's assembly facility in neighboring Ausia will be unable to pass beneath.
Political Science 356,
2006 Problems
page 5
Offshore Rigs Ltd and the Greek owners of several drillships that often use the Strait file objections claiming that construction of the bridge would illegally interfere with their navigation rights in the Strait. Under Janna law, such an objection must be referred to the National Administrative Tribunal for resolution before project planning can proceed further. You are a judge on the Tribunal. Write a memo summarizing your decision on the complaints for circulation to your fellow judges. 30 Oct. Problem 8: Marine Delimitation in the Black Sea (Group 2).
Romania has asked the ICJ to delimit the maritime boundary between it and Ukraine in the Black Sea. You are a judge on the ICJ. Write a memo indicating how you would draw the boundary for circulation to your fellow judges. 3 Nov. Problem 9: The F.V. Green Jade (Group 3)
The Republic of Otnua is a member of the South Pacific Forum Fisheries Agency which has an agreement with the European Union under which EU aid for fisheries development includes provision of information relevant to enforcing fisheries regulations in FFA-member EEZs. Otnua permits fishing boats to use trawl nets and longlines, but not driftnets. During the afternoon of 15 March 2006 an Otnua fisheries patrol ship discovers a newlyplaced driftnet 100 nautical miles from shore. The patrol ship's crew is unable to find any marks indicating ownership on the net and sees no fishing boats in the area. It takes the net out of the water and brings it back to base. A week later, the French government sends the Otnua government copies of satellite photographs time stamped the morning of the 15th showing a fishing boat a few feet from a driftnet in about the same location as the patrol found the driftnet. The number on top and the basic shape match with the Green Jade, a Taiwanese boat with a license to fish in the Otnua EEZ. Three days later the Green Jade returns to the area, and is arrested by a waiting Otnua patrol ship. The Green Jade is taken to port, where the officers, crew, and owners are charged with use of illegal fishing gear. The captain of
the Green Jade objects to the arrest on grounds the photographic evidence is insufficient to support a conviction. You are the Otnuan judge hearing the case. Rule on the captain's objection. 8 Nov. Problem 10: Lanor Missile Test (Group 1)
The government of Lanor has been working hard to acquire medium-range ballistic missile technology and is equally careful to keep its development work as secret as possible. Lanor's first missile test in July 2005 was a failure; the missile went off course and blew up about 2 minutes after launch. Though unannounced, the test was detected by Japanese and Russian reconnaissance satellites and received extensive coverage in international news media. Lanor's second missile test in January 2007 is more successful; the missile flies about 800 miles before
Political Science 356,
2006 Problems
page 6
falling into the ocean about 25 nautical miles from Tun Island, the outermost island in a chain forming part of the territory of Balmaari. The islanders and the Balmaari government are not particularly happy about having missiles crash into the sea so close by without any warning. You are legal adviser in the Balmaari foreign ministry. Prepare a memo outlining Balmaari's options for protesting the missile test. 15 Nov. Problem 11: Borean Complaint (Group 2)
Borea and Molad, two members of the United Nations, share a 1500 kilometer border. After an unsuccessful coup attempt against President Kesh Wallah in 2003, rebel elements of the Borean army retreated to the thick forests near the border and engaged in hit and run raids against railway and highway traffic between the two countries. With Borean permission, Molad's army sent patrols across the border several times during the summer of 2003 to chase down the raiders. As raids continued, Molad sent larger detachments. In February 2005 the Molad army established a base on the Borea side of the border. Three months later, there was another coup attempt against Wallah. After several days of fighting in the capital, forces loyal to Wallah pushed the rebels out of the airport, the radio and TV broadcasting buildings, and the central barracks. They fled to the border area, joining the remnants of the earlier rebel group. The merged rebel groups then began a more serious guerilla campaign against the government. Molad forces made no attempt to stop the renewed raids on railway and highway traffic. Within a few months the rebels had supplemented their initial armories of locally-manufactured AK-47s and pistols with German and Italian submachine guns of types also used by the Molad army. They also succeeded in capturing a number of Borean army heavy trucks in a night raid on an army base about 80 kilometers from the border and 50 kilometers from the Molad base inside Borea. Worried that the rebels might succeed in getting more arms, the Borean government has complained to the UN Security Council that Molad is intervening in Borean affairs and asked it to demand that Molad withdraw its forces and stop supplying the ...