A dispute arising under the Statute of the International Court of Justice February 2013: the government of Canada (applicant) v. the government of the United States of America: (Respondent) memorial of the respondent.

• Author: Zubrow, Michael J.
• Position: 2012-2013: NIAGARA INTERNATIONAL MOOT COURT COMPETITION

STATEMENT OF FACTS

Mr. Hazdi Kuzbari, owner of hospital supply manufacturer Hamoukar, LLC and Mr. Steven Purcell, a Canadian citizen who owns medical equipment distributor POCo are college friends who have entered into a business arrangement beneficial for both companies. (1) POCo and Hamoukar entered an agreement in 1995 for POCo to sell equipment manufactured by Hamoukar to Canadian hospitals. (2) The proceeds are split between the companies with Hamoukar receiving 70 percent of the profits while bearing the expense of shipping and importing its goods into Canada. (3) POCo bears responsibility for marketing the goods and storing them in leased warehouse spaces in Canada and in Detroit, Michigan. (4 POCo) (1) eases the warehouses under year-to-year leases and in its own name. (4) 5

On October, 21, 2006, the United Nation's (U.N.) 1267 Committee declared the addition of both Hamoukar, LLC and its owner Mr. Kuzbari to its terrorist blacklist. (6) The Committee accused Hamoukar and Kuzbari of having ties to an Al-Qaida financier and claimed the company provides financial support as well as travel cover for Al-Qaida. (7) Subsequently, on October 22, 2005, the U.S. Office of Foreign Assets Control (OFAC) added Kuzbari and Hamoukar to its Specially Designated Nationals (SDN) list, blocking their property and prohibiting any transactions related to their assets by U.S. persons or within the U.S.. (8) Mr. Kuzbari has consistently protested the sanctions against him and Hamoukar, denying all links to terrorism. (9)

On October 23, 2006, Canada's Office of the Superintendent of Financial Institutions notified Canadian financial institutions of Hamoukar and Kuzbari's listing and requested they share any information with the appropriate officials. (10) Pursuant to this request, Toronto-Dominion Bank froze an account belonging to Hamoukar where POCo would deposit Hamoukar's share of the proceeds from their sales agreement. (11) On October 25, 2006 Canada designated Hamoukar as a terrorist group.

On October 27, 2006, POCo contacted Canadian officials to disclose the Hamoukar agreement and a list of $25 million worth of Hamoukar inventory in POCo warehouses. (12) Three days later, on October 30, Mr. Purcell informed Mr. Kuzbari that he intended to terminate the Hamoukar/POCo sales agreement. (13) Purcell told Kuzbari that he would not be able to transfer any proceeds to Hamoukar. (14) The same day, the two CEOS signed an agreement ending their sales arrangement, providing that Hamoukar would receive no proceeds from the merchandise still in POCo warehouses, and including a statement that Hamoukar had renounced interest in the property now and in the future. (15) On November 1, 2006, Canada granted POCo a permit to maintain its Hamoukar inventory but not to sell, use, or dispose of the equipment. (16)

On December 5, 2006, U.S. FBI agents seized POCo's property at its Detroit, Michigan, warehouse. (17) Asserting authority under U.S. Code Title 18 Section 981(a)(1)(G), the FBI claimed the property was still controlled by Hamoukar. (18) Mr. Purcell notified Canadian officials of the seizure and filed a complaint in U.S. District Court contending that the assets seized were no longer "controlled by" Hamoukar when they were seized. (19) As Canadian officials protested the seizure with their U.S. government counterparts, Purcell's suit went nowhere as the District Court granted the U.S. government's motion to dismiss and upper courts denied Purcell's appeal. (20) Despite continuous efforts to clear his name, Mr. Kuzbari and Hamoukar are still on the terrorist lists of the U.N. Security Council, Canada, and the U.S. (21)

In March 2011, Mr. Kuzbari, fleeing government persecution in Syria, applied for asylum at the Canadian Embassy in Beirut. (22) Kuzbari had been personally labeled a "co-conspirator and key organizer" of the anti-Assad movement and his family and coworkers had been subject to arrest and harassment. (23) The Canadian consular official found that Kuzbari qualified as a refugee under Canadian regulations but was concerned that being on the U.N. terrorism blacklist may make Kuzbari excludable under the 1951 Refugee Convention Article IF. (24)

Upon learning of Mr. Kuzbari's asylum claim, the U.S. Ambassador to Canada protested personally to the Canadian Minister of Citizenship and Immigration who noted the American objection but made no formal reply. (25) Article IF was not raised at Kuzbari's hearing and Canada's Immigration and Refugee Board subsequently granted him refugee status and admittance to Canada, but Mr. Kuzbari has remained in Canada's Beirut embassy. (26) The U.S. subsequently lodged a formal complaint that granting Kuzbari refugee status violated Canada's obligations under Security Council Resolutions 1267 and 1989. (27) Canada and the United States have been unable to reach agreement on how to move forward regarding either the seizure of POCo property or the status of Mr. Kuzbari and so have mutually determined to refer these questions to the International Court of Justice. (28)

QUESTIONS PRESENTED

1. Whether the United States seizure of POCo property violates international law?

2. Whether Canada violated obligations owed to the United States under international law when it granted refugee status to Mr. Kuzbari?

   JURISDICTIONAL STATEMENT

   Canada and the United States of America (the Parties) have agreed to submit this dispute to the International Court of Justice pursuant to article 36(1) of the Statute of the International Court of Justice (29) and in accordance with the Compromis notified to the Court on August 29, 2012. (30) The Parties have each agreed to fully implement the decision of the Court.

   INDEX OF AUTHORITIES

   Treaties and Other International Agreements

   Agreement for Cooperation in the Examination of Refugee Status Claims from Nationals of Third Countries, U.S.-Can., Dec. 5, 2002, 2002 U.S.T. 125.... XX

   Charter of the United Nations, June 26, 1945 59 Stat. 1031 ... XX

   Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 13.... XX

   International Covenant on Civil and Political Rights, Dec. 19, 1966, 999 U.N.T.S 171.... XX

   United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1984 U.N.T.S. 1465....XX

   Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(111) (Dec. 10, 1948)....XX

   Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 33....XX

   International Cases

   Case T-315/01, Kadi v. Council & Comm'n, 2005 E.C.R. 11-3649....XX

   Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971 I.C.J. 16 (June 21)....XX

   Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 134 (July 9)....XX

   Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226 (July 8)....XX

   Nada v. State Secretariat for Econ. Affairs, Administrative Appeal Judgment, Case No 1A 45/2007, ILDC 46, BGE 133 II 450 (Supreme Court of Switzerland) (2007)....XX

   Domestic Cases, Statutes, and Regulations 31 C.F.R. [section] 501.807 (2003)....XX

   Armstrong v. Manzo, 380 U.S. 545 (1965)....XX

   Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 533 (1985)) ....XX

   Continuation of the National Emergency with Respect to Those Who Commit, Threaten to Commit, or Support Terrorism, 67 Fed. Reg. 59,447 (Sept. 20, 2002)....XX

   Continuation of the National Emergency with Respect to Those Who Commit, Threaten to Commit, or Support Terrorism, 77 Fed. Reg. 56,519 (Sept. 12, 2012)....XX

   Dr M v. Federal Republic of Germany, Judgment of the 10th Division, Mar. 31, 2011, BVerwG 10 C 2.10....XX

   Exec. Order No. 13,224, 66 Fed. Reg. 49,079 (Sept. 23, 2001) XX Global Relief Found., Inc. v. O'Neill, 207 F. Supp. 2d 779 (N.D. 111. 2002)....XX

   Holy Land Found, for Relief & Dev. v. Ashcroft, 219 F. Supp. 2d 57 (D.D.C. 2002)....XX

   Immigration and Refugee Protection Act (S.C. 2001, C.A. 27), [section] 98 ....XX

   International Emergency Economic Powers Act (IEEPA) 50 U.S:C. 35 [section][section] 1701, 1702 (2008)....XX

   Jayasekara v. Canada (Minister of Citizenship and Immigration), 2008 F.C.R. 404, (Can. C.A.)....XX

   Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963) ....XX

   KindHearts for Charitable Humanitarian Dev., Inc. v. Geithner, 647 F. Supp. 2d 857 (N.D. Ohio 2009)....XX

   On the application of JS (Sri Lanka) v. Secretary of State for the Home Department, [2010] UKSC 15....XX

   Pourjamaliaghdam v. Canada (Minister of Citizenship and Immigration), 2011 F.C.R. 666, (Can. C.A.)....XX

   Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982....XX

   Pushpanathan v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1207....XX

   Ramirez v. Canada (Minister of Employment and Immigration) (1991), [1992] 2 F.C. 317 (Can. C.A.)....XX

   Withrow v. Larkin, 421 U.S. 35, 56 (1975)....XX

   Zrig v. Canada (Minister of Citizenship and Immigration), [2003] 3 F.C. 761, (Can. C.A.)....XX

   United Nations Documents

   1267 Committee Analytical Support and Sanctions Monitoring Team, Eighth Report, 17, U.N. Doc. S/2008/324 (May 14, 2008).. XX 1267 Committee Analytical Support and Sanctions Monitoring

   Team, Seventh Report, U.N. Doc. S/2007/677 (Nov. 29, 2007)....XX

   1267 Committee Ombudperson, Report of the Office of the Ombudsperson Pursuant to Security Council Resolution 1989 (2011), U.N.

   Doc. S/2012/590 (July 30, 2012)....XX

   1267 Support and Sanctions Monitoring Team, 12thReport, [paragraph] 32, U.N.Doc. S/2012/729 (Oct. 1, 2012)....XX

   Declaration to Supplement the 1994 Declaration on Measures to Eliminate International Terrorism, 49/60 of 9 Dec. 1994, annexed to General Assembly Resolution 51/210, U.N. Doc. A/RES/51/210 (Dec. 17, 1996)....XX

   S.C. Res. 1267, U.N. Doc. S/RES/1267 (Oct. 15, 1999)....XX

   S.C. Res. 1269...