Instructions

Be sure to put your name on every exam booklet used. You may answer the questions in any order you wish, but to understand the problems fully you should read through the questions in the order I have presented them. Please number your answers, write legibly and skip every other line or leave some space between your answers to allow room for your corrections and my comments. In your answers be sure to state fully and precisely the legal principle for each argument and tie each one carefully and completely to the facts here. (Note: When citing a "specific source of law" below, be precise in identifying the article of the treaty, the paragraph of the legislation, etc. You may get credit for several different references to the same document.)

The approximate point score for each question is indicated in parentheses at the start of the question. In some cases, there may be more reasonable arguments than the number given. The number reflects the upper limit for which I will give you credit. The total number of points on the exam is 51-1/2.


Facts (see map)

Turpitz, Crimona and Barkistan are neighboring states lying along the western shore of the Sea of Portuba. Despite their geographic proximity, the three states are very different.

Turpitz is an impoverished, land-locked state headed by dictator General Ted Tatum. Turpitz does have large untapped deposits of uranium, and has recently formed a state-owned company, Turpitz Uranium Mines (TUM), to begin developing this resource of significant potential value. TUM has opened offices in New York to market the uranium and has deposited $10 million in a New York bank to begin financing its U.S. operations.

Crimona’s economy is based on tourism. Hundreds of thousands of foreigners visit its beautiful coastal resorts annually. However, Crimona’s government is looking for ways to diversify the Crimonan economy.

Barkistan is the wealthiest of the three states, with huge deposits of natural gas. Using revenues generated by the sale of the gas, Barkistan has built a modern space facility at Cape Barki. It is also hoping to develop a fishing industry to take advantage of the stocks of haddock located on the Bob’s Banks, 350 miles from the nearest land. Barkistan’s leader is King Bill II, who has been a good friend to the United States. Unfortunately, Bill’s modernization of Barkistan and close ties with the United States have triggered opposition from members of the Barkistan Islamic Peoples Alliance (BIPA), who have been fighting for years to establish a fundamentalist Islamic state in Barkistan. The U.S. and Barkistan have a bilateral “Treaty of Friendship,” which states in part:

Art. 3- Should either party find it necessary to seize property or otherwise damage the interests of nationals of the other party, appropriate compensation will be given.
Art. 5- The parties hereby agree that U.S. courts will have the right to adjudicate disputes involving claims against the government of Barkistan.

[You may assume that all of the countries in this hypothetical situation are parties to all relevant multilateral treaties and that those treaties are in force.]


1) (12 points) Humiliated by a string of Martian space failures, NASA (the U.S. government space agency) signs an agreement with Barkistan to launch the next flight of the U.S. space shuttle Discovery from Cape Barki. December 15, 1999 is chosen as the launch date for the shuttle’s 10-day mission to ensure that it will return safely to Earth well before the DREADED Y2K BUG DISRUPTS COMPUTERS ALL OVER THE WORLD AND ENDS LIFE ON EARTH AS WE KNOW IT! (Just kidding, but you can never be too careful.) As part of the deal, the U.S agrees to include among the Discovery’s crew Barbie Bates, head cheerleader at Barkistan City High, who will become the first person from the region to go into space. The people of Turpitz are irate that a Barki should precede a Turp into space, and the Turpitz secret police manage to sneak on the shuttle before the launch and move its clock ahead. The results are predictable. Two days after the Discovery is launched, its computers collapse and the shuttle starts spinning out of control. It smashes into the side of a Turpitz communications satellite (sold to Turpitz by the Chinese 2 years before), knocking the satellite out of commission. The Discovery plummets toward Earth and Barbie somehow manages to parachute safely from the Discovery before it crashes in a desolate region of central Turpitz (Point X).

Not knowing where Barbie landed, King Bill sends out a military search team led by Colonel Butch Bradley to investigate the area along the Barkistan/Turpitz border. Unfortunately, Bradley’s helicopter gets lost in a blinding snowstorm and is forced by a malfunctioning engine to land just outside Turpitz Town, Turpitz. While repairs are underway, Bradley orders Private Ben Bummer to “secure the area.” Not Barkistan’s brightest recruit, Bummer begins tying local livestock (mostly cows and chickens) to nearby trees. A local farmer takes exception to Bummer’s actions, grabs him and takes him down to the local sheriff, Tex Tardy. However, Sheriff Tardy just laughs when he hears the story and tells Ben to “go untie the animals and get back to your unit. Y’all get the hell out of here,” Tardy shouts. Bradley’s group leaves Turpitz intact.

Sadly, Barbie has been captured by Turpitz police when she is discovered on Turpitz territory in a tall pine tree 6 miles south of Turpitz Town. It turns out that she had been wearing about $1.3 million worth of jewelry when she jumped and a Turpitz court orders that her jewelry be confiscated to pay for part of the damages caused during the incident. According to the Turpitz court, “Ms. Bates, as a national of Barkistan, must take financial responsibility for this terrible accident, including compensation for the loss of the Turpitz satellite and the cost of the cleanup operations.” Turpitz also brings an international claim against Barkistan to recover an additional $5 million in compensation for the damage done by the space incident and to demand that Private Bummer be returned to stand trial in Turpitz for violating Turpitz’s strict rules against tying animals to trees. As a representative of the Barkistan Foreign Office, explain fully how you would respond to this claim. (1 point for each of 8 arguments; 1/2 point for a case or other source of law to support of them if tied effectively to your answer)


2) (13-1/2 points) In an effort to promote the development of Turpitz’s uranium deposits, Gen. Tatum sends a crate of TUM’s newly-developed product, chocolate-covered uranium truffles, to his Ambassador to the United States, Tina Tim. Ambassador Tim contacts a friend, fellow Turpitz national Tom Tuttle, who happens to be a person with consular status working in the budget office of the Turpitz consulate in Washington. The two decide to host a party at the Turpitz Embassy to unveil the new delicacy. The party is a great success until the guests begin dying of acute radiation sickness. A panicked Amb. Tim orders embassy personnel to lock the doors and to begin force feeding truffles to the remaining 108 guests in the hope of eliminating any potential witnesses. One guest, Penny Petunia (fortunately not a chocolate lover), manages to hide in the bathroom and alert U.S. authorities on her cell phone. Washington, D.C. police storm the embassy and free the guests. One burly officer grabs Amb. Tim’s right arm as she is stuffing a gigantic truffle down Penny’s throat and Amb. Tim’s wrist is badly sprained. She files a civil suit against Penny, DC police and everyone else involved in the incident for the damage she has suffered and for “this clear violation of the rights and privileges of the Turpitz mission and its Ambassador.”

The families of those killed by the truffles file civil claims in U.S. courts against Amb.Tim, Tom Tuttle and TUM for the damages they suffered. Lawyers representing the government of Turpitz tell the court that “U.S. courts have no jurisdiction over this tragic episode, which took place on Turpitz territory. In any event, all three defendants possess immunity, especially given the context in which the events occurred. The purpose of the party was to promote a resource vital to the future of Turpitz. Moreover, there are no assets which could be used to satisfy any judgment the court might make.” As a lawyer representing the plaintiffs, explain fully how you would respond to the Turpitz argument and how you would justify the civil claims against the three. [Please note: You will have to use different arguments for each of the “defendants.” Also, please note that this is not an “individual responsibility” or “war crimes” case.] (1 point for each of 9 arguments; 1/2 point for a case or other specific source of law to support each of them if tied effectively to your answer)


3) (14-1/2 points) Crimona Chemical Industries (CCI), a private Crimonan company, decides to build a chemical factory at Coolsville, located along the banks of Crimbark River which eventually flows into Barki Bay. Crimonan scientists caution government regulators that the proposed design of the plan “will certainly have a negative impact on the downstream environment.” However, in order to help a fledgling industry important to the future of the Crimonan economy, the government overrules a recommendation from the scientists to install an expensive filtration system that would limit downstream damage because it would be “economically undesirable.” The government also agrees that the plant should be built secretly to give the company a head start on any potential competition. A year after the plant opens up, over 400 Barki living along the Crimbark have died of strange “chemical-related” illnesses never reported in Barkistan before the plant began operation. Hotels on Barki Bay report their bookings down by 80%. Even the haddock stocks on the Bob’s Banks appear affected as dangerously high levels of chemicals identical to those produced by the factory are detected in them.

Under public pressure, Crimona decides to capture and truck the waste from the factory to Port Crunch where it will be loaded onto ocean tankers and shipped abroad for disposal. The Crimonan ship Creosote Commander, under the command of Capt. Chet Curd heads out to sea with the first load of chemical waste. Capt. Curd, however, finds the seas a little rough. Feeling queasy and unaware that he is being observed by a Barkistani whale watching boat, Curd orders the crew to jettison the cargo at Point Y, 13 miles from the nearest land. With no need to continue the voyage, he decides to sail into Barki Bay to kill time before heading home. The Commander is cruising around the Bay, when a Barkistani coast guard cutter seizes the ship at point Z, 8 miles from shore and takes the ship to Barkistan City. The captain is tried and sentenced to 10 years in jail for his dumping of the chemical waste and the shipowner is fined $500,000 for “operating a cargo ship in Barkistani waters without a double hull,” a violation of Barkistan’s (toughest in the world) ship construction standards.

The Crimonan government denounces what it terms “a series of flagrant violations of the law of the sea, including the interference with the time-honored right of innocent passage” in the actions taken against the Endeavor and its captain. In a formal diplomatic note, Crimona demands that the captain be released, the fine be returned and compensation be paid to Crimona. As a representative of Barkistan, reply fully to this international claim and outline fully your own complaint concerning all the recent events and what you expect Crimona to do in response. (1 point for each of 11 arguments; 1/2 point for a case or source of law to support 7 of them if tied effectively to your answer)


4) (11-1/2 points) After years of struggle, the revolutionaries of BIPA overthrow King Bill II in a bloody assault on the capital of Barkistan City. (Bill is killed in the attack.) The U.S. State Department refuses to have any dealings with what a spokesperson labels these “brutal anti-American thugs” although she admits that the BIPA “clearly controls Barkistan.”

The new BIPA-installed government quickly passes a law banning “any Christian ceremonies or symbols in Barkistan.” The new law has its most immediate effect on a group of 120 American tourists travelling on the Big Barki, a cruise ship sailing from New York to Barkistan City. The Big Barki flies a Barkistan flag and is owned and operated by Barkistan Tours Inc. (BTI), a private tour agency incorporated in Barkistan, but which has offices (and assets) in New York. BTI had sold the tourists a pre-paid package deal which included a “Christian cruise” from the U.S. to Barkistan and tickets to what had been the annual “Festival of the Barki Star” held on Mount Barki to celebrate the belief of many Christians that the so-called “Star of David” actually arose over Mount Barki. The new law takes effect after the ship has left New York and is over 400 miles from the nearest land. When the Big Barki’s captain learns of the new restrictions, he orders the crew to remove any physical signs of Christianity on board, although the passengers are told that they may pray silently in their individual rooms. The ship’s Christian chapel is replaced by a mosque. The Festival of the Barki Star has obviously been canceled, but BTI now offers daily readings from the Koran until they dock at Barkistan City and then a week-long visit to Islamic shrines in Barkistan.
BTI’s President has a letter distributed to the passengers apologizing for any inconvenience and hoping that they will understand that the situation was caused not by BTI, but by the “act of state” of the new Barkistan government.

The U.S. travelers are not satisfied, however, and the outcry against the proposed alternative tour is so great that the captain decides to sail back to New York where the passengers disembark. The passengers then bring a class-action lawsuit in American courts against BTI demanding full reimbursement of the money they had paid BTI. The State Department sends the court a letter saying “We feel the application of the act of state doctrine would be inappropriate in this instance, especially considering the unrecognized status of BIPA..” The travelers’ lawyers argue, “Given the position of the U.S. government, the terms of the Treaty of Friendship, the past practice of U.S. courts, relevant Congressional legislation, as well as where the act occurred, the court has no choice but to refuse to apply the act of state doctrine in this instance.” As a lawyer for BTI, respond fully and explain why you feel the act of state doctrine should be used here to block this claim against your client. (1 point for each of 8 arguments; 1/2 point for a case or specific source of law to support 7 of them if tied effectively to answer]




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