2014 Niagara moot court competition: the case concerning the Oscar Wilde.

• Author: Carmody, Chios
• Position: Canada v. United States

TABLE OF CONTENTS About the Authors PART I: GENERAL INFORMATION A. Introduction B. Synopsis of the Facts Sam Chandra and Bill Hayter's Domestic Partnership The Freeze on the Sale of The Oscar Wilde C. Sources of International Law 1. General 2. Treaties 3. Customary International Law 4. General Principles of Law 5. Decisions and Publicists D. Burdens of Proof PART II: LEGAL ANALYSIS A. The United States' Obligation Under International Law to Provide for Same-Sex Marriage 1. Does the ICC PR extend the right of marriage to same-sex couples? 2. Interpreting the ICCPR 3. Customary International Law B. OFAC's Blocking of the Sale of The Oscar Wilde 1. Classifying Moses Andrew as a Pirate or Terrorist 2. Does the projected ransom payment to the NLF constitute terrorist financing under international law? 3. Does the Law of the Flag or the Law of the Jurisdiction in Which a Vessel is Located Prevail in the Event of a Conflict? Sponsored by the Canada-United States Law Institute ("CUSLI")

2014 Niagara Problem written by Chios Carmody Bench Memo written by Michael P. Scharf

with the assistance of

Elizabeth Horan, Noah Goldberg, Taylor Mick, Julia Miller, and R. Mitch Wilcos

PART 1: GENERAL INFORMATION

1. Introduction

   The purpose of this Bench Memorandum is to provide judges in the Niagara Moot Court Competition a summary of the basic factual and legal issues in the 2014 Niagara Problem (the "Compromis"). This Bench Memorandum should be read in conjunction with the teams' briefs that you are judging; the Compromis, which is in essence a stipulation of facts agreed to by the two Parties; and the Corrections/Clarifications which supplements the Compromis. The Compromis is intended to present the competitors with a balanced problem, such that each side has strengths and weaknesses in its case. This Bench Memorandum is not meant to be an exhaustive treatise on the legal issues raised in the Compromis, and Judges should not be surprised when, in evaluating either a Brief or an oral argument, they see arguments or authorities not discussed in this memorandum. Their absence from this Bench Memorandum does not suggest that such arguments are not relevant or credible.

2. Synopsis of the Facts

   The 2014 Niagara Moot Court Case concerns two issues: First, whether an obligation exists under international law to recognize same-sex marriage. And second, the extent to which a state may assert its right to protect itself from terrorism by freezing the sale of a yacht where the proceeds were intended to pay a ransom to pirates.

   Sam Chandra and Bid Hayter's Domestic Partnership

   Sam Chandra met Bill Hayter while Sam was studying at Portland State University in 2005. The two quickly hit it off and moved in together just a few months after their relationship began. When Chandra graduated from PSU, Hayter offered him a position as a finance officer with Hayter's successful home renovation business, Hayter Homes Ltd. Chandra and Hayter shared living expenses and divided chores amongst each other at their home. They hiked, hiked, and canoed together, and often hosted a mix of their gay and straight friends over for dinners and parties. The couple also purchased a 22-foot monohull sailboat, which they named The Oscar Wilde, and they would often spend their weekends sailing the through the waters of the Columbia River. The Oscar Wilde was registered and flagged a U.S. vessel.

   In March 2007, Hayter proposed to Chandra at a fundraiser for the Portland Art Museum. The couple went to obtain a marriage license from the Clerk of Multnomah Country, but were denied based on a 2004 amendment to the Oregon Constitution. "Measure 36" amended the constitution so that only marriages between one man and one woman were considered legally recognized. In 2007, however, the Oregon state legislature passed the Family Fairness Act, which created the status of "domestic partnership" and granted certain rights to same-sex couples who registered under the Act. Chandra and Hayter registered their relationship under the Act in March 2008. While the Oregon Constitution still did not recognize same-sex couples as legally wed, those in a domestic partnership were granted the right to make medical decisions in crises, to exercise rights and responsibilities related to property and inheritance, and to benefit from provisions to protect children and other dependents.

   Following a downturn in the Oregon economy, Chandra and Hayter relocated to Vancouver, British Columbia.

   The Freeze on the Sale of The Oscar Wilde

   In May 2013, Chandra and Hayter were spending the night aboard The Oscar Wilde in international waters. At some point in the night, Hayter awoke to investigate a noise and was abducted by masked men who had boarded the ship. Chandra awoke to find Hayter missing, and immediately contacted the Canadian Coast Guard to search for him.

   Two weeks after Hayter's disappearance, Chandra received an email from "Moses Andrew," an individual who identified himself as a member of the Namian Liberation Front (NLF). Andrew informed Chandra that Hayter was alive and healthy, but demanded Chandra pay a U.S. $5 million ransom. The NLF is an organization working towards the creation of an independent state out of the

   Namian Islands, which is currently part of the Republic of Minasia. In pursuit of this goal, the NLF has blown up bridges and buildings throughout Minasia and has been implicated in attacks in the Harjuro, the country's capital. The organization has been designated a terrorist organization on lists maintained by Public Safety Canada and the U.S. State Department. The NLF also maintains close ties with Somali pirates. The two groups have been known to conduct training and information exchange sessions together, and have been implicated in joint attacks on vessels.

   In an effort to raise money for the ransom, Chandra set up a web-based appeal and considered selling The Oscar Wilde. Upon hearing of Chandra's fundraising, the U.S. Office of Foreign Asset Control (OFAC) froze the sale of ship and stated that any private efforts to contribute money would be contrary to international law. OFAC instituted its actions because it believed the ransom payment and the proceeds from The Oscar Wilde would materially assist terrorists in contravention to international law. Canada issued a Diplomatic Note asserting that OFAC's actions were unwarranted, but the U.S. rejected this, stating that every country has a right to protect itself from terrorists.

   Additionally, Canada issued a Diplomatic Note to the United Stated asserting that the U.S. had breached international law by failing to issue a marriage license to Chandra and Hayter. The U.S. responded that every nation has the right to establish what the pre-conditions for marriage are.

   After high-level negotiations in late July 2013 failed, Canada and the United States agreed in August 2013 to submit the disputes about the marriage licenses and OFAC's blocking of The Oscar Wilde to a special chamber of the ICJ. Both countries further agreed that they would fully and immediately implement whatever decision the ICJ renders in the case.

3. Sources of International Law

   This section is an introduction to public international law for judges who might not have professional experience or training in the field. Feel free to skip to Section IV if you have judged International Law Moot Courts in the past and/or feel that you have a good familiarity with the general principles of international law. There are important distinctions between international law and domestic legal systems. The most significant for the international law moot judge is the rigid definition of what sources of law are acceptable before the Court.

   1. General

      The conduct and rules of the International Court of Justice (the "ICJ") are governed by the Statute of the International Court of Justice (the "ICJ Statute"). Under Article 38(1) of its Statute, the International Court of Justice may consider the following sources of international law in order to decide disputes before it:

      1. international conventions, whether general or particular, establishing rules expressly recognized by the contesting States;

      2. international custom, as evidence of a general practice accepted as law;

      3. the general principles of law recognized by civilized nations;

      4. judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

      Commentators disagree as to whether these sources are listed in order of importance.

      Judges from common-law systems should note the status of precedent. Article 59 of the ICJ Statute deprives decisions of the Court any status as precedent, stating, "[t]he decision of the Court has no binding force except between the parties and in respect of that particular case." In practice, however, the ICJ often cites its prior decisions, and those of its predecessor, the Permanent Court of International Justice, as persuasive authority, pursuant to Article 38(l)(d). Additionally, the Court frequently evaluates rules of customary international law in its opinions and subsequently relies upon those evaluations in later decisions.

      Decisions by other tribunals are dealt with in the discussion in Subsection E ("Decisions and Publicists") infra.

      Resolutions of the United Nations General Assembly are not, of themselves, binding before the Court. Although Resolutions may be evidence of customary international law, the General Assembly's position in international law is not analogous to that of a domestic legislature, and resolutions of the General Assembly do not create positive international law.

   2. Treaties

      Treaties are agreements between and among States, by which parties obligate themselves to act, or refrain from acting, according to the terms of the treaty. Rules regarding treaty procedure and interpretation are defined in the 1959 Vienna Convention on the Law of Treaties 1 (the "VCLT")...