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--17 Pages Total-PART I
Question #1
Memorandum
TO
:
Secretary of State; Ambassador Peter Kronk
FROM
:
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RE
:
Ambassador Kronk’s child support payments
It is a maxim of international law that diplomats cannot be subjected to ordinary criminal,
civil or administrative processes in the receiving state, unless their diplomatic immunity has been
waived or if they commit international crimes.1 Thus, though Ambassador Kronk’s assertion of
diplomatic immunity in order to immunize himself from child support responsibilities may
rightly be “dishonorable,” his assertion is correct and therefore should be respected under
international law.2 Hence, the charges against him will most likely be dismissed.
I. Steps & Proceedings to Utilize
Without waiving diplomatic immunity, an attorney should be retained to appear before
the court on behalf of Ambassador Kronk and the United States, and pointing to Art. 31 of the
Vienna Convention on Diplomatic Relations (henceforth VCDR), that “a diplomatic agent shall
enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy
immunity from its civil and administrative jurisdiction.” The three exceptions in this case,
regarding a property action, a succession action (i.e. wills or trusts), and an action relating to
1
Additionally, though of questionable relevance, the Restatement of the Foreign Relations Law of the United States,
Sec. 464, Cl. 2, notes a diplomatic agent of a state is immune “from arrest, detention, criminal process, and, in
general, civil process in the receiving state.”
2
Though this seems implicit since this is a family law matter and it was adjudicated in Canadian court, I assumed
for purposes of this question that both Jane Crane and Ruth (the child) were Canadian citizens. The question
seemed to leave open the possibility they were American citizens whose claim was being adjudicated in Canadian
court.
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professional or commercial activity outside the diplomats official function, are inapposite in this
case. A similar action, in the form of a diplomatic note, should be sent to the Canadian
equivalent of the Department of State regarding this case and requesting diplomatic immunity be
respect, and that the Department take appropriate steps to make sure this happens.
Though it may be heavy handed, it may also be worth notifying the United Nations,
should the Canadian government and the Canadian courts continue to not recognize the
diplomatic immunity of Ambassador Kronk, that we invoke our right under Art. 60, cl. 2 of the
Vienna Convention on the Law of Treaties to terminate the VCDR as between the United States
and Canada.
Competing arguments would point out that under Art. 41 of the VCDR, requires
Ambassador’s to “respect the laws and regulations of the receiving State.” Another competing
argument would also recognize it may be best for the Ambassador or the United States to waive
Kronk’s immunity in order to appear “honorable” and just.
II. Arguments to Raise
An interesting argument would be to utilize the paternity issue as already adjudicated
against Jane Crane. Since Ruth was found to be Mr. Kronk’s daughter, under Art. 37 of the
VCDR, she is entitled to the same immunities as him: “The members of the family of the
diplomatic agent forming part of his household shall, if they are not nationals of the receiving
state, enjoy the privileges and immunities specified [above].” This of course may require further
proceedings to determine citizenship for one or the other, or both, States.
Another argument to raise would be under Art. 29, to assert the proceedings against the
Ambassador are an attack on his person and his dignity. Art. 34 may also be of some use,
especially with regard to the child support payments. It calls for a “diplomatic agent [to be]
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exempt from all dues and taxes, personal or real, regional or municipal.” The exceptions
enumerated in the article do not apply to Mr. Kronk’s case.
Competing arguments would point out, rightfully so, that such additional or continued
legal process would leave the open the possibility the Canadian courts would find we implicitly
waived our immunity by utilizing their courts (See Art. 32, VCDR). There is also the possibility
the exception to diplomatic immunity for civil proceedings (Art. 31) as well as the exemption of
the diplomatic agent from dues and taxes (Art. 34), may be found not to apply. It depends on
how the Canadian courts and the Canadian government interpret “action relating to succession”
and whether or not this would include paternity proceedings. It appears on its face it would not,
referring as argued above to wills, trusts, and other estate issues which are not at issue in Mr.
Kronk’s case, but this is open to interpretation.
Another competing argument would raise the fact diplomatic immunities have slowly
been drawn down over time. Though this is certainly correct, the two constructive theories
which inform diplomatic immunity both lend more credence to the assertion Mr. Kronk’s
immunity would be upheld. The “functional necessity” which reflects the pragmatic shared
understanding of the protections necessary for the successful discharge of the diplomatic
function, and the “representative character” theory, which recognizes a diplomat stands in a
representative character to their sovereign.
The analysis would not be complete with recognizing the possibility of Mr. Kronk being
found a persona non grata under customary international law as well as Art. 9 of the VCDR.
Though this is usually reserved for the most extreme cases – i.e. criminal negligence involving
death – it remains a possibility, albeit remote.
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III. Outcome
Canadian courts will either dismiss the dispute on appeal or the Canadian government
will become involved and interdict the proceedings to halt them. Diplomatic immunity is not in
the VCDR but also is a part of customary international law – indeed it is arguably the oldest jus
cogens norm, going back to the days of ancient Greece.
Word Count: 875
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Question #2
In Hamdi v. Rumsfeld,3 the Supreme Court asserted its unease with the continued holding
of citizen enemy combatants for an indefinite “War on Terror.” With regard to Hamdi, the
detainee at issue during the case, the Court found he could easily have been detained for the rest
of his life. Though Ramsi Al A’Time is not a U.S. citizen, as the Government would argue in
order to make the case inapposite, the Courts reasoning rejects this principle. Noting the War on
Terror is quite unlike any other war prior, which led to the development of the current standards
of international law, the understanding that a detainee may be held for “the duration of the
relevant conflict . . . may unravel.” We contend the process given Mr. A’Time in this case under
the CSRTs was violative of the reasoning of the Hamdi, since it did not provide him adequate
notice of the factual basis for his classification, the decision maker was of dubious neutrality, and
he lacked a fair opportunity to rebut the assertions, being represented by a military
“representative” because he did not attend his own trial.
In In re Guantanamo Detainees, the D.C. District Court found CSRT procedures consist
of broad defects, specifically under international law. After noting the Geneva Conventions are
self-executing, as they have been seen so for years, the Court rejects the assertion of the
government (which they are likely to reassert in our clients case), that the Convention can be
frustrated by proclaiming detainees beyond the reach of Convention procedures simply by
labeling them enemy combatants instead of prisoners of war. This is directly applicable to Mr.
A’Time’s continued detention as well as his trial by CSRT. Importantly, especially for our
client, the Convention is arguably applicable to him so long as his country of nationality is a
signatory.
3
Since domestic case law is likely to be the most persuasive, it is heavily relied on
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Hamdan v. Rumsfeld lends credence to our argument that the crime of conspiracy is not
cognizable under international law with regard to violations of the law of war. The Court
pointed specifically to the trials at Nuremberg, where it found that tribunal pointedly “refused to
recognize as a violation of the law of war conspiracy to commit war crimes.” Additionally, the
Court took issue in Hamdan’s case with the possibility of conviction with evidence the
Defendant may never see or hear. This is one of the reasons the Court finds the military
commission “lacks power to proceed.” Each of these factors are true for Mr. A’Times case, and
therefore should lead to his release, or in the very least, his trial so as not to violate the same
procedural problems the Supreme Court found in Hamdan’s case. Even in the case of the MCA,
which the Government will undoubtedly turn to as proving Congress has mandated the CSRTs, it
is clearly tenable that the Courts reasoning with regard to Common Article 3 still apply with
regard to a commission needing to be “regularly constituted . . . [and] affording all the judicial
guarantees which are recognized as indispensable by civilized peoples.” The Court upheld the
applicability of Common Article 3 in the War on Terror, noting the use of “not-international,”
which it reads to include any conflict not international.
Professor Paust has noted several other Supreme Court cases which interpreted the use of
military commissions (i.e. CSRTs) under international law as being valid only during a time of
war, and more importantly, only in the theater of war. To name a few, in The Grapeshot, the
Court noted the commission is appropriate “wherever the insurgent power was overthrown.” In
Duncan v. Kahanamoku, the Court noted the commissions are appropriate in “occupied enemy
territory.”
We now turn the purely international law to argue the use of the CSRTs in our client’s
case was illegal.
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The Constitution of the United States, Art. VI, Cl. 2, known as the “supremacy clause,”
notes any treaties made by the United States form part of the supreme law of the land. Taking
this as a direct incorporation of the Geneva Convention, the Supreme Court has gone even
farther. It was famously posited in the Paquete Habana that international law “is part of our
law.” In light of these two posits of international law, the Restatement, Sec. 114, notes: “When
fairly possible, a United States statute is to be construed so as not to conflict with international
law or with an international agreement of the United States.”
It is thus legally required, under both the Constitution and governing Supreme Court
precedent, to halt the CSRTs since they are violative of international law. They are violative for
the reasons laid out in the Supreme Court cases in the prior section: they are not regularly
constituted, they violate Common Article 3 of the Geneva Conventions, and notably, our client’s
allegations of torture, if true, would violate a jus cogens norm of international law (See, e.g.
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;
International Convention on Civil and Political Rights; Filartiga v. Pena-Irala (finding torture as
universally condemned and allowing recovery under ATCA)).
The Government will rely on the argument that in any case these treaties and the
accompanying jus cogens norm is inapplicable under Garcia-Mir v. Meese, wherein it was held
that public international law is controlling only “where there is no treaty and no controlling
executive or legislative or judicial act.” Our argument must be that both a domestically and
internationally illegal executive or legislative act cannot possibly be controlling, and that
therefore the international prohibition on the military commissions in this case, as violative of
several treaties as well (and arguably an accompanying peremptory norm), controls the outcome
of the case.
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The best, and arguably most legal, alternative, is to try the detainees in federal court for
violations of international law. The Supreme Court has recognized federal courts jurisdiction to
hear claims with regard to detainees before. In Rasul v. Bush, the court reaffirmed their
authority to hear writs of habeas corpus proceedings with regard to detainees at Guantanamo,
noting it is effectively territory of the U.S. since it has sovereign control of the area. Notably, the
Court so found despite asserting it can have jurisdiction over the detainees anywhere they are
located, so long as they are under the control of the U.S. government.
The Court in Hamdan iterated another alternative which is appropriate here: courts
martial. According to the Court there, the UCMJ requires the President to use uniform rules
wherever practicable; the Court read this as requiring the use of Courts Martial.
Taking due notice of the current administrations interpretation of international law, as
well as its broad assertions of executive power, the trial by military commission is likely to
proceed and a finding of guilty is probable as well. Even considering recent Supreme Court
precedent, the procedures to A’Time are minimal and very deferential to the executive.
Word Count: 1,197
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Question #3
TO
From
RE
Memorandum
: Ms. Marina Litvinenko
: 661087
: Civil compensation for your husband’s death
I. Procedural avenues
Your main procedural avenue will be the Alien Tort Claims Act (ATCA), which states:
“The district courts shall have original jurisdiction of any civil action by an alien for a tort only,
committed in violation of the law of nations or a treaty of the United States.” The tort you are
alleging – wrongful death – has been found cognizable under the ATCA by federal courts here in
the U.S. Thus, you thankfully are on solid legal footing with the substance of your claim, as well
as the chances of having your claim adjudicated in the U.S.
As the Court in Filartiga v. Pena-Irala decided, the ATCA gives jurisdiction to federal
courts for violations of international law regardless of where they are committed. Additionally,
the court found the ATCA should be broadly construed as per international law. Finally, the
court asserted the ATCA allows for the award of punitive damages in the name of deterrence.
The first assertion of the Filartiga court regarding jurisdiction under the ATCA was affirmed in
Forti v. Suarez-Mason. Under Abebe-Jira v. Negewo, we would have no problem reaching Mr.
Putin as joining in either a conspiracy or accomplice liability with regard to the death of your
husband; both are valid charges under the ATCA as found by that court. Negewo, it is worth
noting, further affirmed the ability of federal forums to hear violations of customary international
law under the ATCA.
A second procedural avenue for you is the recently passed Torture Victim Protection
Action (TVPA), which purports to establish liability for “an individual who, under actual or
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apparent authority, or color of law, of any foreign nation . . . subjects an individual to
extrajudicial killing.”
II. Substantive basis of claims
With regard to the ATCA, the substantive basis of our claim is found initially under Forti,
which noted torts charged under the ATCA need only be universal, definable, and obligatory.
With regard to the first prong, we find ample justification for a universal acceptance of the tort of
wrongful death under, inter alia, Art. 3 of the Universal Declaration of Human Rights, Art. 6 of
the International Covenant on Civil and Political Rights, and Art.8(2)(a)(i) of the Rome Statute
of the International Criminal Court. With regard to the second prong of definable, the tort of
wrongful death is easily and readily definable. Considering summary execution was found to
have been readily definable by the Forti court, we are on solid legal footing here as well.
Finally, the tort must be obligatory. The same treaties cities in pursuance of proving the
universality of the tort of wrongful death also serve to show the obligation to adhere to its
prohibition. Especially considering it is a crime cognizable under the ICC, we appear on solid
legal footing here as well. The footing stays solid even in light of the generally restrictive
holding in Sosa v. Alvarez-Machain, wherein the Supreme Court found courts should require any
claim based on the present-day law of nations to rest on a norm of international character
accepted by the civilized world and defined with a specificity comparable to the features of the
18th century crimes originally recognized by Congress. The wide acceptance of the prohibition
on extrajudicial killing keeps us on solid legal footing. So too does J. Breyer’s concurring
opinion, in which he named crimes such as torture, war crimes, genocide, and crimes against
humanity. We could, in the very least, argue your husband was subject to torture (radiation
poisoning) before he died.
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With regard to the TVPA, we find refuge under Kadic v. Karadzic, which finds it
applicable in a broad sense to those acting as state actors or those acting under color of law,
which Mr. Putin was as President. Though the case law on the TVPA is sparser, the clear
writings of the statute make it such that we can successfully charge with the extrajudicial killing
of your husband, since as per the definitions of extra judicial, your husband was deliberately
killed, and this was “not authorized by a previous judgment pronounced by a regularly
constituted court.”
III. Procedural obstacles
With regard to the ATCA, the biggest obstacle will be the near certain assertion by Mr.
Putin of Foreign Sovereign Immunity and/or other related defense, such as Act of State.
However, as the Court found in In re Estate of Ferdinand Marcos, when a sovereign extends
beyond his/her statutory or legal limits, his actions become that of his individual self, and not
that state – making him liable. Any attempts to deny subject matter jurisdiction by Mr. Putin
could be dealt with the arguments in the prior section. In any case, the same court in the Marcos
case found a violation of a jus cogens norm, which your husband’s untimely death arguably is,
provides sufficient jurisdiction under the ATCA. With regard to command responsibility, Mr.
Putin may try to assert that he had no control over the people who poisoned your husband. This
argument also has been rejected by U.S. courts applying the ATCA (See Hilao v. Estate of
Ferdinand Marcos).
Our biggest issue to overcome with regard to the TVPA would be the requirement that
you exhaust any and all domestic remedies before bringing suit under it. This is not clearly
required under the ATCA. We may be able to argue that domestic remedies would be all but
fruitless in any case, and the court cannot require us to expend efforts towards futility. The good
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news is that the other restrict provision of the TVPA, that the person being charged have acted
under state law, is true for your case.
IV. Outcome
With regard to the claim under the ATCA, I believe we have a strong, cognizable claim
with regard to the death of your husband. That U.S. courts have already found a sovereign liable
for his illegal acts while he was sovereign means we have solid precedent already on our side.
Though the TVPA case law is sparser, the statute is far more specific than the very brief
ATCA, and after reading it carefully I feel we also have a strong, cognizable claim for
extrajudicial killing. I am therefore confident about our prospects under both statutes.
V. Alternative Avenues
My best suggestion in this area relates to the men who actually poisoned your husband.
Assuming they can be found, and also in light of the British governments vehement prosecution
and investigation of this case, there is the possibility of having the men extradited to stand trial
for murder in your husbands case. Though thus far Russia has seemed hesitant to cooperate at all
regarding the investigation, it remains a possibility. Finding these men and bringing them to
justice would provide you the sort of justice I think you truly seek in this case; not money, but a
guilty verdict, accompanied by a proportional sentence.
Word Count: 1,141
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PART II
Question #1
Chief Justice Roberts notes that precedent from the ICJ is not even binding on the ICJ
itself, much less on the U.S., who was in any case not a part to the decision. The majority
therefore reaches the conclusion that the Vienna Convention is to be exercised in conformity
with the laws and regulations of the receiving State so long as full effect is be given to the
purposes for which the rights accorded under Art. 36 are intended. In other words, state
procedural default laws apply where applicable, as this in no way denies full effect of the
purposes of the Art. 36 of the Vienna Convention in an adversarial system (something the court
clearly feels the ICJ is not familiar with). The dissent, meanwhile, argues the criminal defendant
should be able to raise the claim that state authorities violated the Vienna Convention at trial or
in post conviction. The dissent spends some time describing the procedural posture of the two
cases brought to the ICJ, positing the holdings, and even notes it is widely held that the Vienna
Convention is self executing. The dissent also notes the interpretations the ICJ gives the Vienna
Convention are consistent with its own (as well as myriad other lower court decisions), and
contrary to what the majority seems to believe, only require the procedural default rule to be cast
aside in cases where the states lack of notification to those held in the first place caused the
procedural default, i.e. in cases where the remedy is most needed and most effective. Finally, the
dissent notes ICJ’s specialty is treaty interpretation and thus its decisions are entitled to more
deference than the Court affords them. Simply put, the dissent recognizes the ICJ’s competence;
the majority does not.
Word Count: 294
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Question #2
The idea is that foreign states should not enjoy sovereign immunity for any act that
constitutes a violation of a jus cogens norm of international law. The status is that there
effectively is not one. In Amerada Hess, the Supreme Court stated that the FSIA’s codified
exceptions are the exclusive basis for rejection claims to foreign sovereign immunity. This
holding was used in Siderman de Blake v. Republic of Argentina, wherein the court held that
Amerada Hess foreclosed the plaintiffs attempt to posit a basis for jurisdiction not expressly
countenanced by the FSIA. This reasoning was repeated in Princz v. Federal Republic of
Germany. Only the dissent in Princz still stands for the idea that violation of a jus cogens norm
can lead to a waiver of immunity. The dissent therein would find a violation of a jus cogens
norm an implicit waiver of immunity within the meaning of 1605(a)(1) of the FSIA. The
justification for the sharp line seems to be old fashioned respect for sovereignty as well as
equality of sovereignties. It seems as well the Supreme Court in Amerada Hess was concerned
about the amount of litigation which would ensue should the U.S. courts be opened up for
exceptions beyond those explicitly outlined in the FSIA.
Word Count: 209
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Question #3
A non-self executing treaty is far more difficult to utilize as a cause of action. The treaty
would then require domestic enabling legislation in order to be the basis for a cause of action.
Still, they can produce legal effects, as they can be used indirectly as a means of interpreting
relevant constitutional, statutory, common law or other legal provisions. The treaty should not
be denigrated either if it is not self-executing with regard to its effect abroad. And as Paust loves
to point out, generally non-self executing treaties can still operate through the Supremacy Clause
of the Constitution to obviate inconsistent state law and/or be utilized more generally to
demonstrate federal preemption. Furthermore, there is the argument that the President has the
duty to execute law, and this includes non-self executing treaties. Finally, as the District Court
noted in In re Guantanamo Detainee Cases, if one pays attention to actual customary usage of
treaties, one can find self execution, as the court did therein with the Geneva Conventions.
Word Count: 169
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Question #4
The doctrine of speciality requires the extradited person can only be prosecuted for the
crime for which they were extradited, absent a waiver by the requested or extraditing state.
Under dual or double criminality, both countries would have a law that would fit the facts of the
crime. With regard to dual or double criminality, under Art. 2(1) of the Canada-U.S. Extradition
Treaty (Treaty), persons shall only be delivered to the requesting state provided the offenses are
punishable by the laws of both parties. Art. 2(3) provides a bit of an exception for federal law;
so long as one of the offenses is a substantial element of a federal crime, it is extraditable.
Relatedly, under Art. 3(3), a person may be extradited if the crime was not committed in the
requesting state if a similar crime so exists in the requested state. Art. 6 prohibits the extradition
of criminals if the death penalty is to be imposed. Meanwhile, Art. 12 is the one which addresses
the doctrine of speciality, noting a person may be tried or punished for a crime for which they
were not extradited for. The Protocol amends the treaty, deleting Art. 2 and rewording it,
effectively taking out the schedule of crimes and making a crime extraditable so long as it is a
crime in both Canada and the U.S. (dual criminality view).
Word Count: 226
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Question #5
Travaux Preparatoires literally means “Prepatory work.” It is the official record of
negotiation, argued by some to be helpful in interpretation of treaties. However, the problem is
that this could easily lead to problems, since it consists of work prior to the finalization of the
treaty and therefore may not be instructive on the final product. The Vienna Convention on the
Law of Treaties (VCLT) seems to forbid reference to the travaux, as Art. 31 states: “a treaty is to
be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of
the treaty in their context and in light of its object and purpose.” As the Restatement, Sec. 325,
Comment e, affirms the VCLT requires the text to either be obscure or reasonable before it can
look to the travaux. However, again referring to the same Restatement provision, “some
interpreting bodies are more willing to come to that conclusion than others,” noting that the
VCLT’s “inhospitality to travaux is not wholly consistent with the attitude of the International
Court of Justice and not at all with that of the United States courts.” Comment g against states
that U.S. courts are generally more willing than those of other states to look outside the
instrument for interpretive assistance.
Word Count: 213
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