INTERNATIONAL LAW EXAM

There are fourteen questions in four different sections (SECTIONS I-IV) in the exam. Each of these questions provides four possible choices of answers. For each question, select the best (or least incorrect) answer and record it in the blue book. If you wish you, may write brief explanation of your answer. If well-crafted, these explanations may allow additional points to be added to any incorrect responses.

SECTION ONE

Edward Smythe, a recent law school graduate who receive honors grades in international law, joined the Office of Legal Adviser of the United States Department of State immediately upon graduation. Smythe was assigned to serve as liaison with the congressional relations office of the State Department, an assignment which required him to respond to inquiries and proposals put forward by members of Congress. His job was to assist in avoiding congressional action that could cause significant problems for the State Department in managing the conduct of U.S. foreign policy.

The first assignment Smythe received required him to respond to a legislative initiative by Senator Holmes, a Southern conservative who wanted to make sure that the United States did not cede the Panama Canal Zone as required on December 31, 1999 by treaty. Senator Holmes contends that although the Carter-Torrijos Treaty of 1978 was approved by the Senate and ratified by President Carter, the treaty was invalid for a number of reasons. Smythe was asked to evaluate those contentions; In addition, Smythe was asked to evaluate some proposed response tactics as administration supporters sought to develop legislative opposition to the Holmes proposals.

Question 1

Senator Holmes stated on the floor of the Senate that the treaty was not effective under international law because Panama was not ruled by a democratically-elected government in 1978. Smythe responded to the administration's legislative allies with a memorandum that states:

(a) Senator Holmes is correct in that the United States cannot be held to be obligated by treaty commitment to a non-Democratic government.

(b) The United States may only enter into international agreements based upon negotiations initiated with prior authorization from Congress.

(c) Since the treaty was approved for ratification by two-thirds of the Senate and ratified by the President, the treaty creates a binding obligation under U.S. Constitutional law as well as international law.

(d) The Senate could avoid U.S. legal obligations under the treaty ineffective by passing a resolution denouncing the commitment because of national security.

Question 2

Senator Holmes argued that Panama could not be forced to comply under international law, since Panama was not a state eligible to enter into treaties. He had argued that although Panama had a government, a permanent population, and territory, the fact of American control over the Panama Canal Zone negated any Panamanian claim to sovereignty. Smythe informed administration legislative allies that:

(a) The fact that Panama had ceded control of the Canal Zone to the United States made Panama unable to claim the status of the sovereign state.

(b) American assistance to Venezuelan revolutionaries who later formed Panama demonstrated that there had not been the exercise of self -determination by the local population to show that they desired recognition as a sovereign states.

(c) As a member state of the United Nations, Panama must be recognized by the United States as a state in that context.

(d) Panama is only required to show that it has a government capable of granting citizenship to persons of its choice in order for it to be a valid state under international law.

Question 3

As chair of the Foreign Relations Committee, Senator Holmes has indicated that he will introduce legislation requiring the President to withdraw recognition of the Panamanian government because of its nationalization of the Panamanian subsidiary of an American corporation. Even though the Panamanian governmental action was for a public purpose, and full fair-market value compensation in U.S. currency was paid to the American corporation that owns the Panamanian subsidiary, Senator Holmes has argued that the any taking of the property of a foreign national was a violation of international law, requiring immediate reprisal. Smythe responded to these claims with a memorandum that says:

(a) Every taking of the property of an American-owned subsidiary is a clear violation of international legal standards, making the taking country subject to international responsibility.

(b) The American parent corporation invested in Panama with a clear understanding that property nationalization was quite common outside of the United States; as a result The American parent corporation has no valid claim for any compensation.

(c) The taking of the property of a foreign national must not be discriminatory and must comply with minimum international standards; the taking must have a justification based in essential national security requirements.

(d) The payment of fair market value in an easily negotiable form makes the nationalization of the American subsidiary an action in full compliance with international norms.

Question 4

In a memorandum, Smythe made the following comments in response to the legislation proposed by Senator Holmes:

(a) The legislation proposed by Senator Holmes intrudes in to the President's constitutional authority to recognize governments and establish diplomatic relations.

(b) Since the Senate has the authority to approve treaties for ratification, they have full power to limit diplomatic relations, constraining the President's choice to recognize states.

(c) The President can only established diplomatic relations with those states and governments not formed in violation of the UN Charter.

(d) The President and the Senate have equal power to determine recognition and diplomatic relationships between the U.S. and any other nation.

SECTION TWO

After 18 months of congressional liaison, Smythe was chosen to join the staff of the United States Mission to the United Nations in New York. Because of the wealth of knowledge that Smythe had gained about the United Nations because of his participation in the Jessup Competition during law school, Smythe served as an adviser to the ambassador who was serving as Permanent U.S. Representative to the UN. Smythe specialized in matters related to the Security Council. His recent experience with the Congress enabled him to prepare the ambassador for visits from CODELs (the State Department's acronym for congressional delegations). The first assignment that Smythe was given at the Mission was CODEL Thompson, a group of senators and members of the House led by Senator Thompson, a friend of Senator Holmes, who was seeking evidence of mismanagement and waste at the United nations.

Question 5

After a tour of the U.S. Mission, the members of CODEL Thompson raised on a number of questions directed to Smythe. One member wanted to know why so many small countries had votes in the General Assembly, and why each vote held by a small country was equivalent to the vote of the United States . Smythe responded:

(a) The procedures for the establishment of the membership of the General Assembly is dominated by a Third World majority with the unlimited right to grant new memberships.

(b) Although many small States are members of the General Assembly, that organ is prohibited from discussing issues related to international peace and security.

(c) Membership in the United Nations is limited to those States that participated in the negotiations of the United Nations Conference on International Organization in San Francisco in 1945.

(d) Although membership in the United Nations is established by decision of the General Assembly, that decision must follow a recommendation by the Security Council.

Question 6

With regard to voting, Smythe replied:

(a) Some states have lost their General Assembly votes because of their failure to pay their monetary assessments.

(b) Many states have lost their ability to participate in the General Assembly because of their failure to comply with Security Council resolutions.

(c) Although a large majority of members of the General Assembly are critical of the United States, resolutions of the General Assembly are of no legal consequence.

(d) As one of five permanent members of the Security Council, the United States can prevent virtually any United Nations action related to peace and security that it finds unacceptable.

Question 7

The presidency of the Security Council rotates monthly, and Smythe was called upon to advise the ambassador on the proper response to a crisis involving a potential threat to international peace and security. Because of a border dispute between Perana and Equito, exchanges of hostile military fire had occurred over the last week. The ambassador wanted to know what Security Council responses were available to assist the parties in resolving this situation. Smythe suggested:

(a) The Security Council should take no action because border conflicts between small States pose no significant threat to international peace and security.

(b) The ambassador should instruct the Secretary General to demand that the two States stop all military activity at the border.

(c) The ambassador should encourage a member of the Security Council to propose a resolution requesting the two states to cease military hostilities and to pursue peaceful means of settling the dispute.

(d) The ambassador should avoid involving the Security Council in what was essentially a legal dispute that should be resolved by the International Court of Justice.

Question 8

While Smythe was serving on the Mission staff, a terrorist bomb exploded in Saudi Arabia at a United States military base, killing 27 soldiers. A rapid review of intelligence information indicated that one government had provided the planning, finance, training, and logistical support for the terrorist group that conducted the bombing, and officials in the State and Defense Departments were advocating unilateral U.S. action against that state. When the ambassador was ordered to Washington to participate in discussions of responses to the attack, he instructed Smythe to write a memo discussing the potential positive or negative impact that the United Nations might have on any proposed U.S. unilateral action. In his memo Smythe stated:

(a) Under traditional principles of customary international law, the U.S. could conduct massive aerial bombardment as unilateral retaliation for the terrorist attack

(b) Under Article 51 of the United Nations Charter, the U.S. could conduct general punitive aerial bombardment in unilateral reprisal for the terrorist attack

(c) The U.S. should seek a meeting of the Security Council in order to present its evidence as to the source of the terrorist action and to propose an appropriate multilateral response under Chapter VII of the Charter.

(d) The U.S. should act unilaterally in conducting surgical military action against the training and logistical facilities which provided support for the terrorist group, justifying the action under Article 51 of the UN Charter as a preemptive strike to prevent further attacks.

SECTION THREE

After two years at the UN mission, Smythe was transferred back to Washington to a position as legal adviser to the Bureau on European and Canadian Affairs at the State Department in Washington. He quickly became involved in U.S. policy with respect to Cubana, a small island nation just to the south of the United States that had come under a communist regime in the early 1960's.

Initially, United States had had mixed responses to the new regime on the neighboring island. However, when the political position of the regime became clear, U.S. reactions became more hostile. In response to this new policy of the United States, Cubana expropriated and nationalized the large number of properties owned on that island by U.S. corporations. Following the expropriation, the U.S. imposed a comprehensive trade embargo which imposed significant stress on the island's economy. After the fall the Soviet Union, the economy of Cubana completely collapsed under the weight of the U.S. trade embargo. Those trade measures were still in force when Smythe came into the Bureau on European and Canadian Affairs. Although there was some sentiment for changing policy toward Cubana, flexibility was greatly constrained by Cubana exiles living in a U.S. who were incredibly hostile to the island's regime and very active in U.S. political circles.

At the request of these Cubana exiles, Senator Holmes and Senator Thompson sponsored legislation that imposes significant economic sanctions on any foreign person who gained possession of former-U.S. property, which had been expropriated and nationalized by the Communist regime. That legislation prohibited U.S. individuals and corporations, or foreign subsidiaries majority-owned by U.S. corporations, from acquiring, buying, selling, or transporting products of Cubana, or goods destined for or moving from Cubana. The legislation also allowed litigation in U.S. courts to be brought against any person holding property, or the proceeds of such property, which had been expropriated by the Cubana communist regime from U.S. nationals. Finally the legislation prohibited travel to the United States by officers and employees of many corporation owning former expropriated property, and also prohibited any U.S. person from entering into a contract with any such foreign person or corporation.

Question 9

Smythe's but first assignment in the Bureau involved responding to Canadian individuals and corporations who faced significant economic disruption from the extraterritorial dimensions of the Holmes-Thompson legislation periods. After a few weeks on job Smythe developed a few stock answers to questions brought to him by lawyers representing these individuals and corporations. Among his answers were:

(a) The Holmes-Thompson legislation is a very reasonable exercise by Congress of its admitted constitutional power over international trade.

(b) Since the Holmes-Thompson legislation has intentional extraterritorial affects on foreign corporations, the State Department would not enforce such congressional enactments.

(c) The Holmes-Thompson legislation represents an acceptable exercise of the U.S. territorial jurisdiction over foreign subsidiaries of U.S. corporations.

(d) The U.S. has jurisdiction over its nationals, which must comply with applicable federal legislation even though they may be outside of the territory of the United States.

Question 10

While working with the Bureau, Smythe encountered a law school classmate at a party. The classmate had been hired by one of the exile groups to bring litigation against Cubana in a U.S. federal court in order to recover expropriated property or its proceeds. The classmate recalled taking an international law class with Smythe; the professor had made some confusing reference to "foreign sovereign" immunity. The classmate expressed doubt that this immunity applied in her case. Smythe's replied:

(a) The only immunity that might impede the legal action against Cubana would be diplomatic immunity if the exiles tried to file an action against a UN-based Cubana diplomat.

(b) The Foreign Sovereign Immunities Act provides one method for asserting legal jurisdiction over a foreign State in U.S. federal court.

(c) The litigation will not be allowed because the United States does not recognize the state of Cubana, even though that state is a member of the United Nations.

(d) The Foreign Sovereign Immunities Act does allow jurisdiction over a narrow class of actions involving rights in property taken in violation of international law

Question 11

A year earlier, a small private plane flying along the edge of Cubana territorial waters was shot down by an intercepting fighter. Two exiles were killed. The exiles were conducting a patrol to facilitate the rescue of refugees sailing away from Cubana; according to local official claims, the private plane had entered Cubana airspace. In a Senate speech, Senator Holmes suggested that the exiles bring a claim against Cubana in the International Court of Justice ("ICJ"). When a legislative assistant from the Holmes office came to the State Department to talk to Smythe about how the exiles should proceed, Smythe responded that:

(a) The International Court of Justice does not accept jurisdiction over incidents involving the use of military force.

(b) The exiles should have no difficulty in bringing a case in the ICJ against a state that would use force against an unarmed civilian aircraft.

(c) The exiles cannot independently bring their case before the International Court of Justice.

(d) The United States has terminated its practice of participating in cases brought before the International Court of Justice.

Question 12

Senator Holmes responded to complaints about U.S. assertions of extraterritorial jurisdiction over foreign corporations by offering legislation to define any corporation having a majority of its shares held by U.S. nationals as a corporation having U.S. nationality. Smythe was called into the office of the assistant secretary to attend a meeting with officials from the European Union who were complaining loudly about Senator Holmes' legislation. After the departure of the European Union officials from the office of his boss, the assistant secretary, who asked Smythe for his evaluation of the Holmes idea on corporate nationality, and Smythe responded:

(a) The State nationality of the majority of the shareholders provides a traditional locus for the protection of the property interests of the corporation

(b) The identification of corporate nationality with the state of corporate formation permits manipulation of the regulatory regime constraining corporate behavior

(c) Designation of the state of the corporate headquarters or the state of corporate formation as the state of nationality of the corporation permits choice of legal regime and satisfies shareholder and corporate expectations

(d) There must be a "genuine link" between a corporation and the state of corporate nationality.

SECTION 4

After three years , Smythe moved from the Bureau of European and Canadian Affairs to the Bureau of Democracy, Human Rights, and Labor. Smythe was quite happy with the move because it gave him the opportunity to focus on an area of special interest: human rights conventions and their enforcement. Smythe had always been interested in the relationship between U.S. constitutional values and the norms included in the international human rights conventions.

Unfortunately, Smythe discovered that an old nemesis was fully prepared to cause problems in his new job as well. Senator Thompson had made repeated speeches on the floor of the Senate that the United States should remain loyal to the principles of its own Constitution and should not constrain itself by adhering to the terms of these "puny" human-rights conventions. Senator Thompson refused to accept the possibility that an international convention may contain important protections not available in United States law.

Question 13

The assistant secretary who headed the Bureau called Smythe's into her office to help her prepare for a Senate hearing on U.S. execution of human rights conventions. She knew that some members of the committee would take her to task for the shoddy record of the United States with regard to these conventions. She also knew that Senator Thompson would challenge any claim that human rights conventions offered additional protections not available under the Constitution. The assistant secretary asked Smythe if he had any suggestions on methods for advocating human rights conventions without disparaging the Constitution. Smythe replied that:

(a) She need not advocate further commitment to human rights conventions since the Constitution was easily adequate to protect the important values

(b) While the Constitution provided admirable protection for individual civil and political rights, modern ideas of economic and social rights needed protection

(c) Most of the early human rights conventions for drafted with reference to the ideas in the U.S. Constitution; only those conventions should be considered for ratification.

(d) U.S. ratification of additional human rights conventions serves no meaningful purpose since such conventions are not judicially enforceable in U.S. courts .

Question 14

When the assistant secretary went to the hearing room to testify, Smythe accompanied her. During a hearing she was asked why some European nations were criticizing the United States judicial system, refusing to allow extradition when there was potential for the imposition of the death penalty. Before answering the question, the assistant secretary turned to Smythe to see if he had any ideas that she might add to the response that she had in mind. Smythe responded that:

(a) Although many European States have moved away from the death penalty, none of them provide Constitutional protection for the right to bear arms

(b) European concerns about the dehumanizing experience of death row has led them to construct analogies between death row and torture, a practice generally prohibited by all of human-rights law.

(c) While the death penalty is currently constitutional in the United States, awareness of differing international perceptions of the practice may guide constitutional evolution to reach different conclusions as to its acceptability.

(d) European hesitation to extradite hardened criminals because of the risk of the death penalty merely demonstrates that so-called "universal" human rights have unavoidable limits on their scope.

END