Part II. Essay questions

 

Answer Questios (worth 50%)
Base your answer on the assigned readings in the course and material presented during lectures. Be sure to cite these. Although you should

not need additional sources to write your answer, you may consult them. If you do read another source and use someone else’s ideas, you

must cite it in your essay.
It is acceptable for you to discuss the essay questions with other students in the class, but the actual essay you turn in must reflect

your own work. If the essays submitted are too similar, those students will receive an F for this part of the exam.
You may bring a two-page outline of your answer to the exam.
1. Consider the policy described in the New York Times article in light of international law.

https://www.nytimes.com/2018/02/17/books/curtis-dawkins-graybar-hotel-prisoner-book- deal.html
When this issue comes to the attention of attorneys at the Center for Constitutional Rights, the Center files a lawsuit on behalf of Mr.

Dawkins and 53 other individuals, 2/3’s of whom are nationals of other countries, against the states that routinely seize earnings of

inmates. The CCR alleges that confiscating the prisoners’ earnings violates U.S. obligations under the International Covenant on Civil and

Political Rights and the Torture Convention. It is also incompatible with provisions in the UN Nelson Mandela Rules (formerly Standard

Minimum Rules For the Treatment of Prisoners). https://www.penalreform.org/priorities/prison-conditions/standard-minimum-rules/
The attorneys general for the states contend that the lawsuit should be dismissed because the warden and other state officials named as

defendants enjoy immunity and also because the treaties cannot be invoked in court. Even if these procedural barriers did not exist, they

maintain that the inmates would lose on the merits because the policy of seizing the earnings does not violate the treaty provisions.
Write an essay in which you assess the arguments on both sides. Consider what would likely transpire if the case were to go to the

International Court of Justice.

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2. States have been protected via various forms of immunity doctrines including sovereign immunity, head of state immunity, and diplomatic

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immunity. Write an essay in which you explain how courts grapple with determining the scope of these rules as well as their policy

implications. Be sure to include in your analysis a critique of the Pinochet case, Saudia Arabia v. Nelson, Swarna v. Kuwait,

http://caselaw.findlaw.com/us-2nd-circuit/1539224.html
and David Stewart’s interpretation of immunity doctrines up to Samantar v. Yousuf(on ARES). What sorts of difficulties does existing

jurisprudence reflect with the application of immunity rules? Outline changes in this body of law that you recommend and explain your

reasoning carefully. Be sure to consider objections that others might raise to your proposals.
3. American student, Hope Forbedder, an eighteen-year old college student at U.C. Santa Cruz, is studying abroad in Malaysia where

possession of drugs is a capital offense. http://www.drugpolicy.org/blog/malaysia-set-execute-more-people-drug-offenses
She has dual

nationality; her father is American and her mother Malaysian. Drugs are planted in her dorm room whose possession is a capital offense.

Campus police interrogate her, and she admits to having purchased the suitcase in which the drugs were found, but denies that she ever

used them. Without the benefit of an attorney, she is immediately prosecuted and sentenced to the death penalty. The U.S. asks Malaysia to

reconsider the sentence, but this request is denied.
Subsequently, the U.S. arranges to have private military contractors fly in to rescue Hope. While in Malaysia, they also abduct a movie

director who is there to receive a lifetime achievement award; he has been wanted in the U.S. for sexually assaulting young girls. Hope

and the director arrive safely in Los Angeles.
Malaysia files a complaint against the U.S. in the International Court of Justice for the covert operation that took Hope and the

director. Both states agree to the jurisdiction of the World Court for the resolution of this conflict. Assume both states ratified the

Vienna Convention on Consular Relations and the Optional Protocol and the International Covenant on Civil and Political Rights (both with

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a reservation to Article 6).
You are the Justice of the World Court who must write the opinion in the case of Malaysia. v. U.S. Be sure to explain your reasoning.

Substantiate your points by referring to previous cases and the logic on which their decisions are based. After you provide your analysis

of the issues, indicate what steps should be taken to rectify any errors you have found in the behavior of either state.
2. International Covenant on Civil and Political Rights, pertinent articles:
Article 6
1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his

life.
2. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in

accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and

to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final

judgement rendered by a competent court.
3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State

Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention

and Punishment of the Crime of Genocide.
4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the

sentence of death may be granted in all cases.
5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on

pregnant women.
6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present

Covenant.
Article 9
1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be

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deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any

charges against him.
3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to

exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that

persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of

the judicial proceedings, and, should occasion arise, for execution of the judgement.
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4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that

court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.
5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.
Article 10
1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.
2.
(a) Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate

treatment appropriate to their status as unconvicted persons;
(b) Accused juvenile persons shall be separated from adults and brought as speedily as possible for adjudication.
3. The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social

rehabilitation. Juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status.