Professor John Dernbach, from Widener University Law School, has kindly agreed to post on the website a series of questions he uses in class. These include study questions based on the treaty and role plays. The different sections below address:
Customary International Law
CUSTOMARY INTERNATIONAL LAW EXERCISE
This is to set out the ground rules for the Economia /Asphyxia exercise on pp. 521-22 of the text. I thought after class that this might help clarify your roles.
For the first round, the question is whether the Trail Smelter rule is a rule of customary international law. Here, the advocates for each country must argue that the Trail Smelter rule is or is not binding on Economia. They can use various international agreements as evidence of state practice under customary international law. They might find it useful to look at the Framework Convention on Climate Change and the Rio Declaration as examples. Assume that all countries have ratified or agreed to the Convention and the Rio Declaration. Each presentation should not exceed 2-3 minutes. A major question is whether customary international law should be based on what countries do inside their own boundaries, what they agree to in international treaties and conferences, or both. We'll talk about that question in class after the presentations.
The second and third parts of the exercise are conventional oral arguments. Each side should be prepared to make their basic points in 2-3 minutes. The judges will be asked to decide the case afterwards, and will be asked to provide an explanation for their decision. They should also be prepared to ask questions of the advocates.
If you have any questions of me, please don't hesitate to ask.
VIENNA CONVENTION ON TREATIES AND RELATED TEXTS EXERCISE (OLD EXAM QUESTIONS)
1. In a recent vote on ratification of Treat X, 80 U.S. Senators voted in favor and 20 voted against. Did the Senate ratify the treaty?
2. Mordva has signed the Convention on Biological Diversity, but has not ratified it. What legal obligation, if any, does Mordva have under the Convention?
3. Article 23(a) of the Annex to Convention (No. IV) Respecting the Laws and Customs of War on Land specifically prohibits the use of "poison or poisoned weapons." Radiation from nuclear explosions can poison people. The conference of the parties to the convention has never considered the convention to apply to nuclear weapons. Does the prohibition in Article 23(a) apply to nuclear weapons?
4. The Kansu River flows through three countries-Chengu, Hunan and Yunnan. Recently, Chengu and Hunan entered into a treaty concerning the use and conservation of the river. Yunnan refused to take part in the negotiations. Did the treaty nonetheless create legal rights for Yunnan?
5. Country X, which has ratified the International Covenant on Economic, Social, and Cultural Rights, now wishes to be no longer bound under the Covenant. The Covenant contains no provisions concerning termination or withdrawal. What must Country X do to escape its obligations under the Covenant?
6. Country Y has signed and ratified the Treaty on the Non-Proliferation of Nuclear Weapons. What general obligations toward the treaty does not Country Y now have?
7. About 50 years ago, New Antilles and Jaburu both ratified a law enforcement treaty in which they agreed to "take all measures necessary and appropriate for the interrogation of suspected criminals." Recently a New Antilles citizen was arrested and tortured for alleged drug trafficking in Jabaru. Can Jabaru use the treaty to show that torture was necessary and appropriate?
8. A century ago, Countries A and B concluded a treaty that created a new boundary between them. Before the treaty, an important river was inside the boundary of Country B. The new boundary put the river inside Country A because important new industries in Country A relied heavily on use of river barges for moving freight. Country A no longer uses the river for barge traffic. May Country B now withdraw from this treaty?
STRATOSPHERIC OZONE PROTECTION
EXERCISES
1. The state of Rajastan, located in central Asia, is part of the former Soviet Union. Like many parts of the former Soviet Union (FSU in international parlance for those who don't confuse the acronym with Florida State University), it is considered a developed country under the Montreal Protocol. Rajastan is a party to the relevant agreements. Rajastan has had chronic problems complying with the Montreal Protocol because it has had other priorities, including a minor civil war. A major source of international concern is the large state-owned refrigerator company, which continues to make inefficient refrigerators that use CFCs.
The parties to the Convention have authorized limited assistance to Rajastan to help convert the refrigerator plant to non-ozone-depleting refrigerants. Rajastan is willing to comply, but insists on an up-front payment of the money to do the job. Rajastan's government does not keep particularly good track of receipts and expenditures, and there is evidence that some of its budget is siphoned off to foreign bank accounts in the name of individual government officials.
The object of this exercise is to see if there can be a negotiated solution to the problem, particularly the ground rules for when and how money will be transferred. One student will represent Rajastan, and one student will represent the United Kingdom (which in turn is representing the conference of the parties). The role play should last no more than about ten minutes.
2. The state of San Pedro is a small, comparatively well-governed developing country. San Pedro is nowhere near to complying with the developing country deadline for reducing its production and use of ozone-depleting substances. San Pedro is also a party to the relevant international agreements. San Pedro's government has traditionally made three arguments against taking action to reduce ozone-depleting substances:
Recently, aides to U.S. Senator Sam McGee, whose subcommittee has jurisdiction over foreign aid to San Pedro, prepared talking points on these issues for a forthcoming trip to San Pedro. According to these talking points, he plans to say:
Details of Senator McGee's talking points were recently reported in The New York Times, and there has been a political firestorm. Because Senator McGee is seeking to be Secretary of State in the next presidential administration, he has sent his trusted aides to San Pedro to see if there can be some reconciliation of the opposing positions on these issues.
Three students will represent San Pedro, and three students will represent Senator McGee. Each of the three parts of this role play should last no longer than about ten minutes.
3. The state of Cook is a small island nation several hundred miles off the coast of Antarctica. It is named for its discoverer, Captain James Cook, who landed there during his voyage to determine if there was a great southern continent. Icebergs prevented him from finding Antarctica. Because of its isolation, the country has many bird and animal species that exist nowhere else. In the last ten to twenty years, as the ozone hole in the southern hemisphere has developed, several different bird and mammal species are showing a much greater incidence of blindness. This is particularly true of Cook's Penguin, a particularly attractive penguin species that brings most of the tourist income upon which Cook depends for foreign currency. Because blind penguins have difficulty eating, their population has plummeted from starvation. There is a substantial scientific consensus that their blindness is caused by increased amounts of ultraviolet radiation from the thinning of the ozone hole. Cook is threatening to sue the United States for damages in an appropriate forum based on the trail smelter rule. One student will report to the class on Cook's likelihood of success. Others will then ask questions. This role play should last no more than 10-15 minutes.
FRAMEWORK CONVENTION ON CLIMATE CHANGE
STUDY QUESTIONS
1. In plain English, what is the objective of the Convention? Do you agree with that objective? If not, what do you think the objective should be?
2. Among the various principles stated in Article 3, which one do you believe to be the most important? Why?
3. What is a sink? What is a source? Provide one example of each.
4. All parties agreed to do certain things in the Convention. Which of the following is not among them?
5. The Convention identifies three major types of parties, and sometimes contains separate rules for them. What are these three types of parties, and why do you think there are sometimes separate rules for each?
6. What commitment did the developed countries make that comes closest to being a quantifiable reduction in greenhouse gas emissions?
7. What is the conference of the parties? What kinds of things is it supposed to do? What was it supposed to do at its first session? Why?
8. The commitments of developing countries are contingent upon their receipt of _______________. (Fill in the blank.)
9. What can Article 5 contribute to the effectiveness of the convention? Article 6? Article 9? Article 10? (This is a harder question than it looks; consider each of these articles separately.)
10. If there are no amendments or protocols to this particular Convention, what good is it?
KYOTO PROTOCOL
STUDY QUESTIONS
1. The countries listed in Annex I of the Framework Convention made a collective commitment concerning greenhouse gas emissions in the Kyoto Protocol. What was that commitment? Are these countries developed, developing, or both?
2. What specific commitment did each of these make?
3. Which greenhouse gases are covered by the Kyoto Protocol? Identify at least one type of greenhouse gas that is not covered by the Protocol.
4. Does the Kyoto Protocol oblige the Annex I countries to fulfill their obligations by using particular legal tools, or does it give countries flexibility to decide which legal tools are appropriate for them?
5. Joint Fulfillment of Commitments (art. 4). Why might two or more countries (or even all members of the European Community) agree to jointly fulfill their commitments under this Protocol? What happens if the joint effort fails?
6. Joint Implementation (art. 6).
7. Clean Development Mechanism (art. 12).
8. Emissions Trading (art. 17). The idea behind emissions trading is that it might be cheaper, on a per-ton basis, for a power plant in Country A (which we will call Plant A) to reduce its carbon dioxide emissions than for a power plant in Country B (Plant B) to reduce its emissions. Perhaps Plant A can reduce its emissions for $20 per ton and Plant A can only reduce its emissions for $60 per ton. If they both were required to reduce their emissions by five tons, then the cost would be $100 for Plant A and $300 for plant B, or a total cost of $400. If they were allowed to reduce their emissions by a total of ten tons in any way they liked, Plant A might be willing to reduce its emissions by ten tons (for a total cost of $200) as long as plant B paid an appropriate fee. The total compliance cost would thus be half of what it would otherwise be.
9. Developing Countries.
10. In general, if a country complies with its emissions reduction commitment under this protocol, is its compliance activity likely to occur mostly within its borders or mostly outside its borders?
BIODIVERSITY CONVENTION
QUESTIONS AND ROLE PLAY
QUESTIONS
1. What are the purposes of the Biodiversity Convention? How easy or difficult will it be to reconcile those purposes?
2. What good can be achieved with the national strategy required by Article 6(a)?
3. In plain English, what does Article 6(b) require? What good can that do?
4. Why do you think identification and monitoring is required under Article 7?
5. What is in-situ conservation?
6. What is ex-situ conservation?
7. Does the convention prefer in-situ conservation or ex-situ conservation?
8. Review Articles 10 through 22. Identify the article you believe to be most important to the success of the convention, and explain your answer. [This is an opinion question; there is no single "correct" answer.]
ROLE PLAY
Assume that you are a United States Senator who is a member of the committee responsible for developing domestic legislation to implement the Biodiversity Convention. The Committee has agreed to investigate six different types of legislation: planning, regulation, information, economic instruments, property, and education. (See pp. 68-82 of my article, Sustainable Development as a Framework for National Governance.) The Committee has also agreed to consider, not just new legislation, but also the repeal or modification of existing legislation, as a way of protecting biodiversity. (See id. pp. 63-68.). Come to class prepared to propose and discuss your proposed bill for one of these six categories. Your presentation should explain what your bill would require, prohibit, or allow; how it would be enforced; and the effect it would likely have on biodiversity. Your presentation need not last more than 2-3 minutes.
BIOTECHNOLOGY
QUESTIONS AND ROLE PLAYS
1. For years, farmers and scientists have developed plants that yield bigger tomatoes and cows that produce more milk. How is biotechnology different from traditional methods of plant and animal breeding?
2. The Biodiversity Convention distinguishes between biological diversity and genetic resources. In plain but precise English, what is the difference?
3. How could the use and sale of genetic resources help protect biological diversity? How could the use and sale of genetic resources damage biological diversity?
4. The Biodiversity Convention also distinguishes between biotechnology and genetic resources. In plain but precise English, what is the difference?
5. The Biosafety Protocol is the first protocol to emerge from the Convention. Why do you think it is the first? Should other protocols/issues have higher priority?
6. What is the purpose of the Biosafety Protocol? How real a problem do you think this is?
7. Identify at least one real example of a living modified organism, as defined in the Protocol.
ROLE PLAYS
1. This role play involves one student, who is an attorney in the Ministry of Foreign Affairs for Lombardia, a small developing country. A flowering plant called the Lombardia hyssop, which grows only in that country, is wanted by Global Pharmaceutical Co. for use in a novel drug of potentially huge economic consequences-a skin cancer vaccine. Because much research and testing has yet to be done, it is also possible that the use of the Lombardia hyssop will have no benefit as a vaccine. The Prime Minister, who ran her recent election on the slogan "Lombardia for Lombardians," does not want to share the plant with anyone. What advice should he/she give the Prime Minister based on the Biodiversity Convention? The presentation should 1-2 minutes. The rest of the class will play members of the Prime Minister's cabinet, who will ask questions. The entire role play should last 5-10 minutes.
2. This role play involves six students. Two represent the government of Amazonia, a biodiversity-rich country. Two represent North American Health Corp. (NAH), a large manufacturer of over-the-counter and prescription drugs. The third pair represent the Lambeau tribe in Amazonia, who have lived in the northeast part of the country for at least 7,000 years. For several millennia, the Lambeaus have cultivated a number of plants that are eagerly being investigated by biodiversity prospectors.
The legislature of Amazonia is debating legislation to implement the part of the Biodiversity Convention concerning access to genetic resources. For this role play, one person on each team should make a 1-2 minute statement identifying two provisions that should be in this legislation, and explaining the basis for his/her position. When each of these statements is complete, the other student on each team must comment on (supporting, opposing, or supporting or opposing with qualifications) each of the major points made by the other teams.
These students will then attempt to negotiate the basic provisions of legislation that all three entities could support before the Amazonia legislature. This role play should last 20-30 minutes.
3. This role play involves two students, one representing Yoribo and the other representing the Gaul, a large European country in which Oat-1, a genetically modified grain, is grown and processed. Oat-1 is resistant to several major plant diseases because a jellyfish gene has been transplanted into the genetic material for the plant. The leading newspaper in Yoribo, a developing nation, recently contained a front-page story about a scientific study concluding that Oat-1 can interbreed with certain wild grain plants to create an aggressive and "naturally" reproducing hybrid that could overwhelm natural plant communities. Based on that newspaper story, Yoribo immediately banned any agricultural use of Oat-1 for six months pending further investigation. Is this a proper application of the Biosafety Protocol? If not, the countries must attempt to resolve their differences, and negotiate a resolution of this issue. Both countries are parties to the Biodiversity Convention and the Protocol. This role play should last about 20 minutes.
CONVENTION ON INTERNATIONAL TRADE IN ENDANGERED SPECIES
QUESTIONS
Your client is Buck Jorgenson, who is now in the bush somewhere in western Kenya. He called your office from his cell phone, but you were away. A clerk in your office wrote down all his questions. He expects you to have the answers when we meet. Unless otherwise noted, all questions concern the Convention on International Trade in Endangered Species (CITES).
1. I want to export an entire elephant. Does CITES apply?
2. Does it matter whether the creature is alive or dead?
3. What if I want to export only the tusks?
4. What if I first have the tusks carved into little figures?
5. Let's talk about uncarved tusks. I hear African elephants from some African countries other than Kenya are now listed under Appendix II. I'm going to tell you these tusks are from one of these Appendix II countries. Work with me on this. What do I have to do to get an export permit?
6. What is a scientific authority? What is its purpose?
7. What is a management authority?
8. Does it matter whether the export is for commercial purposes or not?
9. If I am shipping elephant tusks to Hong Kong (for carving and sale), do I need to make sure my agent in Hong Kong has import permit?
10. How easy is it to get around the Appendix II system?
11. I might have to claim these tusks as coming from Kenyan elephants. That would make them Appendix I critters. I presume I still need to get an export permit. Do the criteria for getting an export permit change in Appendix I? If so, how?
12. For Appendix I, what does my agent in Hong Kong need to do to get an import permit?
13. Is the Appendix I system harder to evade than Appendix II?
14. Will you represent me if I get into trouble? Remember, I'm depending on you!
U.N. CONVENTION ON THE LAW OF THE SEA
QUESTIONS
The Convention on the Law of the Sea divides oceans into three categories:
1. Does a country have the legal right to keep other states out of its exclusive economic zone? Is that right absolute?
2. Within the exclusive economic zone, does a state have any conservation duties?
3. Which nations are the high seas open to?
4. Is there any conservation duty for the high seas? If so, what is it?
5. What is the legal relationship between the U.N. Convention on the Law of the Sea and the Straddling and Migratory Fish Stocks Treaty?
GENERAL AGREEMENT ON TARIFFS AND TRADE
QUESTIONS
In the following questions, all countries are parties to GATT.
1. There is a long running dispute between Malabar and Australia. In response, Australia says that all Malabar cheese coming into Australia is subject to a 50% surcharge. Australia imports cheese from many other countries without any surcharge. Can Australia do that? Why or why not?
2. Australia imposes a limit on pesticide residues in imported cheese. Because it wants to encourage cheese production in developing African nations, Australia allows much higher pesticide residues in imported African cheeses. Can Australia do that?
Why or why not?
3. Malabar has a large number of small dairy farmers or peasants. Most have only a few cows, and these produce only a little milk. As a result, milk from these farmers tends to be more expensive than milk that is mass produced in other Latin American countries. To protect its dairy farmers, Malabar imposes a 100% surcharge on all milk and milk products imported into Malabar. It makes no distinction among importing nations. Can Malabar do that? Why or why not?
4. What if Malabar got rid of the surcharge and instead imposed a system requiring that 50% of all milk and milk products sold in Malabar must be produced domestically?
5. What if Malabar got rid of the 50% quota and subsidized its dairy farmers instead?
6. Could Malabar impose a 50% sales tax on all milk sold in Malabar? Why or why not?
7. What if Malabar said that cheese imported from Asia must be marked "Made in Asia with high levels of pesticides"?
8. Canada has banned the importation of hardwoods and hardwood products (e.g., furniture) from the United States that are not certified as the products of sustainable forestry practices. There is a certification program for such practices in the United States, and a recognized organization manages the certification procedure.
a. Does that violate any prohibition in GATT?
9. If there is a conflict between GATT and the Biodiversity Convention, which treaty prevails and why?
Vienna Convention
Stratospheric Ozone Protection
Framework Convention on Climate Change
Kyoto Protocol
Biodiversity Convention
Biotechnology
CITES
U.N. Convention on the Law of The Sea
GATT
a) The concept of common but differentiated responsibilities (see, e.g., Rio Declaration Principle 7) excuses developing countries from taking action.
b) If San Pedro is obliged to reduce these substances, developed countries must pay the full cost.
c) If San Pedro is obliged to reduce these substances, developed countries must provide the available technology free or at cost, with no patent protection, and no royalty or licensing requirements that will involve subsequent costs.
a) The concept of common but differentiated responsibilities does not excuse San Pedro from taking action.
b) San Pedro must pay the full cost of new technologies needed to comply with the Montreal Protocol, including amendments to the Protocol.
c) Private companies with substitute technologies should provide them at full cost, with full patent protection, and the most profitable royalty or licensing requirements they can negotiate.
a. Develop and publish national inventories of greenhouse gases and sinks.
b. Consider climate change in national actions and policies.
c. Reduce greenhouse gases by specific amounts.
d. Establish trading systems for greenhouse gases.
e. Report to the conference of the parties on actions taken to implement the convention.
a. United States.
b. Russian Federation.
c. European Community.
d. China
a. What countries are eligible for participation in joint implementation?
b. Let's say Country A was obliged under the Kyoto Protocol to reduce its carbon dioxide emissions by 100 tons. If it reduced those emissions within its own borders, the cost would be $40 per ton. If it reduced those emissions within the borders of Country B, the cost would be $15 per ton. If both countries are eligible for joint implementation, and both are interested, what can Country A do?
c. Is there any limit to how much Country A can use joint implementation to meet its Kyoto Protocol commitment, as opposed to reducing emissions within its own borders?
a. What countries are eligible for participation in the Clean Development Mechanism?
b. Provide an example of a project or activity that might get credit under the Clean Development Mechanism.
c. For a project's emission reductions to be approved under the protocol, what criteria must those reductions meet?
a. Based on the level of detail in article 17, is emissions trading likely to occur before or after joint implementation or use of the clean development mechanism?
b. What do you think the potential weaknesses of a trading system would be?
c. If there was to be established an international trading system under the Climate Change Convention, how should allowances be allocated? Here are two approaches:
--Existing emissions, because it corresponds to existing reality.
--On a per-capita basis, because every individual should be equal under the Convention regardless of citizenship.
i. What are the strengths and weaknesses of each choice? Which do you prefer?
ii. What would you propose to gain acceptance from both developed and developing countries? You may set forth a third alternative.
d. Apart from allocation, what other issues must be resolved to apply a trading system internationally for greenhouse gases?
a. Why do you think developing countries are unwilling to commit to emissions reductions?
b. Do you think they would be willing to commit to such reductions now if developed countries provided financial and technical assistance?
A. Explain how the convention gives you that answer.
B. Why do you think the convention contains that preference?
a) Territorial Sea-up to 12 miles off a nation's cost. Here, the nation has exclusive sovereignty to regulate fisheries.
b) Exclusive Economic Zone-up to 200 miles off a nation's coast. Coastal states still have the exclusive right to manage living marine resources, but this right is subject to the legal responsibility to manage and conserve living marine resources.
c) High Seas-everywhere else.
b. If that action does violate a GATT prohibition, is it nonetheless permissible under GATT? Why or why not?
