QUESTION 1

FITZAL is a multinational company of the industrialized State of Kisumu which has, since 1965, owned and operated a chemical plant for manufacturing pesticides in the developing State of Homa.

On 15 February 1975, Homa experienced another mild earthquake which, as in four similar cases occurring between 1945 and 1975, affected more seriously the area along River Kuja. The chemical plant was built in 1964 along this river which passes through the territory of Homa and two lower riparian States of Rongo and Ahero. Because of the February earthquake, the chemical plant suffered a serious damage which resulted in the sudden and excessive release of pesticides and other chemicals into River Kuja. The nature of the pollution damage caused was such that Homa alone could not cope. Three days later the pollution from the FITZAL plant was threatening to cause similar damage in the two lower riparian States which had no knowledge of the accident in Homa. Their efforts to control and abate the pollution damage threatening them downstream were too late. The information they finally received from the local press reporting on the events in the FITZAL plant did not contain enough necessary details concerning the nature of the chemicals involved. Their efforts to get accurate information from the government of Homa were frustrated because they kept on receiving conflicting views from various government departments in Homa. One of the facts which they were able to gather was that the chemical plant was indeed built on an earthquake fault line along the river, which made it susceptible to the kind of damage it finally suffered in 1975.

Prompted by these events, Homa has now called a meeting in its capital city of Rupedhi with the two lower riparian States to negotiate a treaty for cooperation in the management and utilization of the Kuja river on which they all rely for fresh water and fish.

You have been hired as a consultant to help these States to negotiate and conclude such a treaty.

1. Outline some of the basic provisions which such a treaty should include in order to address certain specific problems brought out in the above event.


2. Outline briefly, the basic arguments which Rongo and Ahero may rely upon if they decide to bring a case against Homa in an international tribunal to which they have all conferred jurisdiction for such cases.

QUESTION 2

Franconia and Blanconia are two neighbouring African States, members of the Organization of African Unity (OAU) and of the United Nations. Franconia was under the colonial rule of Elbia until it became independent on 25 May 1960. Blanconia was under the colonial rule of Rosia until its independence on 12 July 1961.

On 30 September 1968, Franconia and Blanconia concluded a Treaty of Friendship and Cooperation, in which they agreed, inter alia, to settle all their disputes peacefully, particularly those relating to the interpretation and application of treaties. They also reiterated their acceptance of the OAU resolution of 1964 concerning respect of the inherited colonial boundaries under the principle of uti possidetis.

Elbia and Rosia had concluded a treaty on 28 August 1923, determining the boundary between their respective colonial territories of Franconia and Blanconia. A section of the border, situated near an administrative centre of Elbia and known as the Flania Triangle remained unsettled. For administrative convenience, it was agreed between the two colonial powers that the Flania Triangle be temporarily administered by Elbia until a definitive boundary could be reached. This agreement was inspired by the fact that the Triangle was an important grazing ground for one of the nomadic tribes of Franconia. However no further agreements were reached on this section of the boundary.

Upon independence, Franconia issued a notification of succession to all treaties concluded by Elbia, including the Treaty of 1923. Blanconia, on the other hand, declared a "tabula rasa" with respect to treaties concluded by Rosia.

The Temple of the goddess Blan, considered by the Blanconians to be the mother of their nation, is located in a special section of Flania. Every year since the colonial era, a number of Blanconians attended the pilgrimage to the Temple. In 1989 and given the increasing number of pilgrims to Flania, Franconia which continued to administer the area after Elbia, changed the rules and imposed restrictions on the number of pilgrims that would be admitted there. This provoked a public outburst in Blanconia. The people of Blanconia called on their government to take action since, in their view, Flania's Temple was part of their historical heritage. A strong protest was sent to Franconia by Blanconia against these restrictions. Franconia ignored the protest. In the meantime, in order to boost its decreasing popularity, the government of Blanconia decided to invade Flania on 25 August 1989 ant took control over it from Franconian administrators. In response, Franconia dispatched its armed forces to the disputed area and immediately referred the matter to the Security Council of the United Nations. The Security Council was convened on 26 August 1989.

1. Prepare a concise statement containing the arguments which the Permanent Representative of Franconia is likely to make in the Security Council concerning the case.



2. Prepare a concise statement containing the arguments which the Permanent Representative of Blanconia is likely to make before the Security Council in response.


3. In your view, what should the Security Council do on this question? Explain.

QUESTION 3

Petrolminus is landlocked State neighbouring two coastal States: the Republic of Fishfull and the Kingdom of Mineralia. The three States have ratified the 1982 United Nations Convention on the Law of the Sea. (for the purposes of this question, assume that the Convention has already entered into force.)

On 15 May 1989, seventeen nationals of Petrolminus were arrested by the authorities of Fishfull while fishing in the exclusive economic zone (EEZ) of the coastal State, without permission. Their vessel was confiscated and its contents (tilapia fish which they have traditionally relied on for food) expropriated. The arresting authorities also claimed that the vessel used by the Petrolminus nationals in their illegal fishing polluted the area through excessive discharge of oil caused by a defect in the vessel. While the Petrolminus nationals in question were released and returned home, their vessel was detained by Fishfull authorities.

The Government of Petrolminus, having been informed of the incident, contacted the Government of Fishfull and suggested a meeting between them to deal with such problems which began to be of a recurring nature. In the Note to Fishfull, the Government of Petrolminus lamented the reluctance of both Fishfull and Mineralia to conclude with its appropriate bilateral agreements, in accordance with article 69 of the Law of the Sea Convention, to enable the nationals of the landlocked State to participate in the appropriate surplus of the living resources of the EEZ of the two neighbouring coastal States.

Petrolminus asserted, in particular, that, while the capacity of Fishfull to harvest tilapia fish in its EEZ was only 20%, the total allowable catch for that particular fish requires a harvesting capacity of over 67% as established by the scientific evidence provided by the Food and Agriculture Organization (FAO). This is to avoid under-utilization of that particular resource. Accordingly, the refusal of Fishfull to declare surplus with respect to tilapia fish and to allow Petrolminus to have access to such surplus was unreasonable and amounted to a violation of articles 61, 62 and 69 of the Law of the Sea Convention (Part V). Petrolminus demanded the immediate release of the vessel. The Government of Fishfull denied the assertions of Petrolminus regarding the surplus of the living resource and continued to detain the vessel.

Having failed to reach a settlement of these issues through direct negotiations between them, Petrolminus notified Fishfull of its intention to invoke the third-party procedures of Part XV of the Law of the Sea Convention against Fishfull. Both parties have made currently valid declarations under article 287 of the Convention, conferring jurisdiction to two different procedures under the article. Petrolminus conferred jurisdiction upon the International Court of Justice, while Fishfull conferred jurisdiction upon the International Tribunal for the Law of the Sea.

1. Outline how the disputes between Petrolminus (the Applicant) and Fishfull (the Defendant) should be handled under Part XV (full text made available to candidates for the examination) of the Convention, having regard to the substantive provisions of Part V (full text made available to candidates for the examination) of the Convention.


2. Which party, in your view, should prevail and on what issues?

QUESTION 4

The Central Bank of the State of Bangbang concluded a contract with DETAILS International, a cement manufacturing company in the Republic of Tintin, for the supply of 510,000 bags of cement. The cement was needed by Bangbang for building a new army headquarters and for distribution to Government trading agencies to sell to the public.

Upon the conclusion of the contract at the offices of DETAILS on 15 December 1989, the Central Bank's negotiators made a down-payment of 10% of the total cost of the transaction in United States dollars as stipulated under the contract. The rest was to be paid thirty days following delivery of the cement, which was scheduled to take place during the month of June 1990. The parties agreed that the contract was to be interpreted and applied in accordance with the laws of Tintin and further stipulated therein that any disputes arising therefrom should be settled by a competent court in Tintin.

Delivery of the cement was made by DETAILS on 15 June 1990 as scheduled. But the Central Bank refused to pay the rest of the contract price, claiming that about 5% of the cement was damaged. DETAILS refuted this claim and asserted that the entire shipment was in good order. Six months later the Central Bank had not made any payments to DETAILS, claiming that the defective bags be replaced first.

Tintin had recently passed a Sovereign Immunity Act (in force prior to the date of the said contract), according to which sovereign immunity defence could only be granted if the transaction in question is undertaken as acta jure imperii (public act) and must be denied if the transaction, judged by its nature as opposed to its purpose, is a commercial one (acta jure gestionis). That law also stipulated that all cases arising from the application of the act are to be settled by the High Court of Tintin unless the parties otherwise agreed in a contract.

On 10 January 1991, DETAILS brought a case of breach of contract against the Central Bank of Bangbang, in the High Court of Tintin. The Central Bank refused to appear before the Tintin Court, claiming sovereign immunity. The Court proceeded to hear the case ex parte. DETAILS requested the Court to order the Central Bank to pay at least 95% of the remaining purchase price of the cement already delivered. For the enforcement of the judgement, DETAILS further prayed the Court to permit the seizure of the special bank account which the Embassy of Bangbang had maintained in Tintin for the payment of Embassy staff and for the rents of the Embassy premises.

1. As the lawyer representing DETAILS in the case, what arguments will you present to support your case, given the attitude of the Bangbang Bank?



2. What should be the decision of the Court in this case? Why?

List of topics

Contents of the examination and suggested topics

The examination deals with areas such as the use of force, sources of international law, refugee questions, nature of United Nations instruments (e.g. General Assembly Resolutions), questions related to treaties, disputes settlements, human rights and law of the sea. As the questions are based upon both substantive and procedural law, familiarity with the Charter of the United Nations, law of treaties, and the relevant decisions of the International Court of Justice are essential.

Note on examination format

The questions will call for legal analysis and demonstration of knowledge of international law. Participants will not be permitted to use any materials others than those provided by the examiners.

Answers and evaluation

Except where otherwise indicated, all questions must be answered according to the generally accepted principles of international law. The answers to the questions should show a recognition of material and relevant issues presented by the facts; the candidates should discuss the principles of law applicable to the facts, and set forth the different steps of reasoning by which the conclusion has been reached. In grading the examination, appropriate credit will be given, for well reasoned analyses of the legal issues.

Examination Sample: General Paper (P2)
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