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THE GREAT TUNA BOAT CHASE AND MASSACRE: By What follows is a moot court case that, as a simulation of World Court proceedings, provides an experiential learning opportunity for students to apply legal rules and principles that they have learned in their international law class and that are discussed in Between Peril and Promise: The Politics of International Law. It is intended for use by either law school professors or political science professors who teach international law, but has special utility for the latter. Instructors of international law courses taught as part of the undergraduate or graduate political science curriculum are confronted with the need to strike a balance between the traditional, “legal-formal” approach to international law which is emphasized in law schools and the “theoretical” approach which focuses on international law in the context of international politics. In striking a balance between these approaches, two specific educational objectives should be met: (1) to convey information about international legal institutions and the content of international law itself (which relates to the first approach) and (2) to provide understanding of the role of international law in affecting relationships among states and individuals (which relates to the second approach). Political scientists tend to stress the second objective, often to the exclusion of the first, not only because they often feel inadequate in their knowledge of the law compared to professional international lawyers, but also because they would rather deal with the more dynamic, behavioral aspects of international law than with what they perceive as dry, technical legal rules and machinery. However, I would argue that this perspective both does a disservice to the student—insofar as it deprives the learner of exposure to an important component of the field (the “meat and potatoes” of international law) which is directly relevant to preparation for law school or international careers—and fails to recognize that the study of legal rules and machinery can be made quite interesting if the proper teaching materials and methodologies are imaginatively employed by the instructor. One particular pedagogical strategy which I would recommend, based upon my own experience in teaching an undergraduate international law course, calls for combining traditional case materials (for example, the elaborate discussions of the rules and precedents of international law found in Damrosch, Henkin et al. and other casebooks and legal texts noted in the bibliography at the rear of Between Peril and Promise) with simulation exercises that actively involve the student in researching and grappling with the heavily legalistic writings he or she may be asked to digest. This “learning-by-doing” strategy can be illustrated by reference to “The Great Tuna Boat Chase and Massacre” case, a fictitious case invented by the author to serve as the basis for a moot court contest conducted in an undergraduate international law course. The case appears below. The Great Tuna Boat Chase and Massacre Case Submitted to the International Court of Justice by the United States of America, with Ecuador as Respondent, on January 1, 2006. From the date of its independence in 1822 until 1952, Ecuador had accepted the customary 3-mile limit as the demarcation of the State’s territorial waters. The three mile limit was thus recognized as the officially defined boundary over a period of several years. However, when the legendary Juan Valdez achieved power in 1952, his regime announced that the 3-mile limit was never meant to be considered a fixed and unalterable boundary, and that historical practice as well as the natural features of the area justified a 200-mile territorial sea which it intended to enforce. The dependence of the country on fish resources as the primary source of exports and national wealth (other than oil) was cited as further justification of the establishment of a 200-mile limit. Successive Ecuadorian presidents since Valdez reiterated the 200-mile limit, although the country was lax in enforcing it. It was during the Carlos Ruiz administration (1998–2004) that one Donald Thomas, a United States shipowner having commercial interests and property in Ecuador, began sending his vessels into the vicinity of Ecuador’s coastal waters to fish for tuna. On February 17, 2004, a Thomas-owned fleet of three tuna boats, all registered under the U.S. flag and manned by Americans, were fishing approximately 185 miles off-shore when an Ecuadorian naval vessel opened fire upon the three boats, after the latter ignored a signal to prepare to be searched. The boats headed out to sea and were pursued by the naval vessel, the Madera, which was joined by other government gunboats. Eventually, 20 miles later, the vessels caught up with the fugitive fleet and destroyed two boats, killing one of the crew members and wounding several others. In addition, one of the pursuers himself was killed when an American crewman resisted arrest as the former attempted to board the sole surviving craft, the Mercury. The Mercury was confiscated, the American crewmen were taken into custody and arraigned on charges of resisting arrest and manslaughter, and were imprisoned for five months while awaiting trial. They have since been sentenced to 10-year terms. In accordance with an Ecuadorian law that permits an alien to own property in the country only so long as his activities do not conflict with the laws of the State, Thomas’s holdings were confiscated by the Government. Thomas asked the United States government to intercede on behalf of him and his crew in order to secure the latter’s release and to gain reparations for property loss and personal injury as well as restitution for improper confinement. The United States government agreed to do so, filing an application with the International Court of Justice on January 1, 2006, after failing to obtain satisfaction through other legal or diplomatic means. The United States called on Ecuador to respond and submit the dispute to the Court. Ecuador disputed the jurisdiction of the Court, claiming in a preliminary objection that it had not signed the optional clause giving the Court any jurisdiction in such matters. However, based on what it felt were strong arguments in its favor, Ecuador finally agreed to allow the Court to render a decision on the merits of the case. The arguments are to be presented by the parties before the Court on April 8 and 10. At that time, the Court will be asked to decide whether the merits of the U.S. claim on behalf of Thomas in the U.S. (Thomas) v. Ecuador case should be upheld or denied. On the basis of the arguments presented to the Court by the applicant and the respondent, and in accordance with the basic canons of international law, the Court will deliver its opinion in the case no later than May 16. The Simulation This case is the core of a seven-week module in the middle of the course that requires students to gain familiarity with the “stuff” of public international law—the body of rules that comprise “the law of nations,” including many discussed in Part Two of Between Peril and Promise and covered in standard textbooks. The Tuna Boat case intentionally raises a great number of international legal issues, not only relating to the law of the sea and hot pursuit (discussed in chapter 7) but also use of armed force (chapter 5), treatment of aliens, expropriation of property, and denial of justice (chapters 4 and 6), and other topics. In preparing for the simulation, students must go beyond the course textbook and read actual opinions issued by national and international courts that show the law in action. This is no easy task for students to accomplish in view of the enormous volume of reading of jargon-laden legal writings which must be undertaken if they are to grasp the content of the law. While there is no substitute for large doses of reading, the Tuna Boat case can supplement the reading in a way that makes it considerably less painful by giving students a challenging opportunity to apply their knowledge directly to a concrete situation that is fictitiously and lightly constructed (and hence is conducive to a lively classroom experience) but at the same time is not far removed from the real world (and hence has elements of current relevance and deadly seriousness). The student’s efforts throughout the seven-week module are “goal-directed” toward the moot court competition, which is the culminating activity held during the last week of the module. At the outset of the module, students are given a list of over two dozen historical cases which have come before international and national courts, commonly cited by legal scholars as illuminating specific rules of international law in a variety of issue-areas. (These and other well-known cases are listed in the Table of Cases at the rear of Between Peril and Promise and are found in the casebooks I list under Resources for Researching International Law that follows the glossary of cases. The Between Peril and Promise Web site provides links for accessing many of these cases on the Internet, either in the form of full-text or excerpted opinions.) Six weeks are spent with students reading these cases and presenting individual oral reports on particular cases in class, with such student-centered learning integrated with the instructor’s lecture material. In presenting reports in class, students are asked to provide in a nutshell (1) background information and facts, (2) identification of the key legal issue(s), (3) the decision reached in the case, and (4) the reasoning behind the decision. Although only one person is responsible for reporting on a given case, every member of the class is told that they are expected to read all the cases by the end of the module since the assigned paper—a written judicial opinion on the Tuna Boat case—will require a comprehensive knowledge of the cases. Early in the module, three members of the class are selected to represent the plaintiff (the United States) in the Tuna Boat case, and three others are asked to represent the defendant (Ecuador). Selection is based on both an expressed willingness to participate and a demonstrated ability to make a special contribution to the class. It is important that both teams have high-caliber students who will take the assignment seriously; when I have at times had graduate students enrolled with undergraduates in the course, I have often enlisted the graduate students to perform the litigant roles, although academically strong and intellectually curious undergraduates can do the job as well. Each team is encouraged to determine its own division of labor, which tends to revolve around three main issues: (1) maritime boundaries, including territorial seas and economic zones; (2) hot pursuit and the use of force; and (3) state responsibility toward aliens, including expropriation of property and denial of justice. Each side is asked to prepare legal briefs, basing their arguments on extensive legal research beyond the two dozen cases required of others. The briefs are to be presented to the International Court of Justice (that is, the remaining members of the class) on a specified date at the end of the module. The other members of the class in effect play the role of ICJ judges, having to question the litigants during the court proceedings and having to evaluate the various arguments advanced. Each “judge” is ultimately responsible for delivering a verdict following the proceedings in the form of a twenty page paper which draws on the case materials covered throughout the module plus other bibliographical sources. The Tuna Boat scenario is written in a balanced manner that makes it possible for either side to offer compelling arguments capable of winning a favorable judgment. It is a true test of their understanding of the law for applicants and respondents to develop evidence and rationales in support of their positions, and for the judges to develop opinions based on a careful weighing and synthesis of the ideas presented in the briefs. Aside from providing students with a chance to apply their knowledge of international law, the moot court contest also can serve to increase student familiarity with the legal process itself, including the role of preliminary objections, and the World Court as an institution. Regarding the time frame of the simulation, I have found that at least two to three class periods are needed for the court proceedings if all the legal issues are to be adequately addressed and if the judges are to be furnished a reasonable opportunity to interact with the litigants. The instructor’s role is threefold: (1) in regard to pre-simulation activities, to insure that the litigants have their final draft briefs ready by the date of the proceedings and that the judges have received adequate grounding in the law through the case materials discussed earlier in the course; (2) in regard to activities during the simulation, to serve as chief judge and to moderate the proceedings in a manner that maximizes overall class participation and gets the key issues “out on the table” and crystallized; and (3) in regard to post-simulation (debriefing) activities, to report back to the class the nature of the verdicts reached by students in their written opinions (i.e., who won?) and to evaluate the quality and reasonableness of the arguments presented. Of course, the instructor must also supply ample bibliographical leads to aid students in researching the case. (See below an extensive bibliography that accompanies the Tuna Boat case.) Although I can offer no clear empirical evidence that learning is improved through the use of a strategy that combines the traditional lecture-reading mode with simulation, it can be said on the basis of participant observation that the strategy, at the very least, increases student interest in the course as a whole and in the subject matter in the particular module just described. For the brighter and more senior students, the simulation encourages them to do extra legal research beyond the normal course requirements and also furnishes them with a peer-group teaching experience. For the average students, the simulation whets their appetite for learning and generates more interest in and understanding of the subject matter than would otherwise be the case in most circumstances. For the instructor, the simulation permits him or her to expose the student to the “nitty-gritty” of international law and the “legal-formal” approach to the field in a relatively enjoyable way. Having done this, the instructor can then go on in the remainder of the course to take up the grander, arguably more exciting, “theoretical” questions surrounding the role of law in producing a more peaceful, equitable world. RESEARCHING THE TUNA BOAT CASE: BIBLIOGRAPHICAL SUGGESTIONS Over 70 percent of the Earth’s surface is covered with water, making law of the sea questions more than just a casual concern of fishermen and scuba divers. Indeed, the future well-being of the entire planet may depend on managing ocean resources. The Tuna Boat case is closely related to law of the sea concerns. It raises other concerns as well, for example relating to the use of armed force and treatment of aliens. In researching the case, it is helpful first to glance at “International Legal Research Sources,” chapter 10 of Thomas Buergenthal and Harold Maier, Public International Law in A Nutshell, 2nd ed., which provides guidance as to where to look for writings relating to treaties and other “sources” of international law. 1. Treaties — U.S. treaties are listed in Treaties in Force and discussed in U. S. Treaties and Other International Agreements. All recent treaties (not only U.S.) can be found in the UN Treaty Series. Also see International Legal Materials. Many treaties are accessible online through the links provided on the Between Peril and Promise Web site, such as http://fletcher.tufts.edu/multilaterals.html which is the homepage of the Multilaterals Project at Tufts University. 2. Customary Practice — For U.S. and other states’ practice, see various “digests.” In particular, see Marjorie Whiteman, Digest of International Law (1963–1973) and updated volumes by Eleanor McDowell, Digest of US Practice in International Law and Sally J. Cummins and David P. Stewart, Digest of US Practice in International Law. The U S. Department of State Bulletin (now called the Dispatch) can also be useful as a guide to U.S. practice (as well as treaties entered into). Recent issues of the Dispatch can be accessed online at http://www.state.gov/www/publications/dispatch/index.html. Also see the latest edition of the Restatement of U.S. Foreign Relations Law published by the American Law Institute. 3. General Principles and Judicial Decisions — The “casebooks” listed in the bibliography at the rear of Between Peril and Promise contain not only synopses of cases tried before international and national courts but also excellent commentaries, notes and references and leads for further bibliography. I have provided at the rear of the book, and also on this Web site, a Table of Cases that lists well-known international law cases decided by the Permanent Court of International Justice (PCIJ), the International Court of Justice (ICJ), the U.S. Supreme Court, and other judicial bodies; many of these cases are relevant to the Tuna Boat case. Full-text opinions as well as excerpted material are available online through the links provided next to each case, such as http://www.worldcourts.com/pcij/eng/ and http://www.icj-cij.org. 4. Scholarly Writings — The American Journal of International Law (AJIL) is an excellent source of information on past and current international law; it contains commentaries on important court cases as well as discussions of contemporary legal issues. It can be accessed at http://www.jstor.org/journals/00029300.html. Also see the international law treatises and texts that are listed in the bibliography at the rear of Between Peril and Promise. In addition to the general tips above, here are several specific bibliographical items that are particularly germane to the Tuna Boat case. (For a light starter, read “Tuna Tussle,” Time, June 7, 1963.) I. Law of the Sea (Maritime Boundaries, Fishing Zones, Hot Pursuit, etc.) A. Good overviews can be found in the following:
Damrosch, Henkin, Pugh, Schachter, and Smit, International Law: Cases and Materials, 4th ed., chapter 15 on “Law of the Sea.” B. Key excerpts of the Law of Sea Treaty, along with commentary, can found in:
Lori Damrosch et al., Basic Documents Supplement to International Law: Cases and Materials, 4th ed., chapter 16. In addition, see Burns Weston et al., Basic Documents in International Law and World Order; also see Weston et al., “The Sea Around Antilla and Costa Grande,” chapter 8 of International Law and World Order (especially pp. 835–865 and 885–890). C. Specific Law of the Sea issues are discussed in:
“The Tuna War,” University of Illinois Law Review (1981), pp. 755–774. D. Court Cases
The I’m Alone (U.S.-Canadian Claims Commission) II. State Responsibility for Protection of Aliens (Expropriation, Denial of Justice, etc.) A. Good overviews can be found in the following:
Damrosch, Henkin, Pugh, Schachter, and Smit, International Law: Cases and Materials, 4th ed., chapter 13 on “Responsibility for Injury to Aliens.” B. Specific issues are discussed in:
Ecuador’s constitution can be found in Modern Constitutions and in Blaustein and Flanz, Constitutions of the Countries of the World. C. Court Cases:
Roberts Claim (U.S.-Mexico General Claims Commission)
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