International Court of 

Justice 

 

Session of 12 December 1957 

Edison Advanced Conference 2017 

 

CASE 1: Aerial Incident of 27 July 1955 (Israel v. Bulgaria) 

CASE 2: Application of the Convention of 1902 Governing the 

Guardianship of Infants (Netherlands v. Sweden) 

 

Chairs: Jessica Nguyen and Victoria Westover 

1 

Table of Contents

Notes from the Chair 3

Committee Procedure 4

Writing Your Position Paper (Before Committee) 7

Writing Your Case Bloc Decisions (During Committee) 11

List of Motions 10

Case 1: Aerial Incident of 27 July 1955 (Israel v. Bulgaria) 12

I. Case Background

II. Bulgaria’s Position

III. Israel’s Position

IV. Case Study

V. Questions to Consider

VI. Works Cited

VII. Witness Overview

Case 2: Application of the Convention of 1902 Governing the 19

Guardianship of Infants (Netherlands v. Sweden)

I. Background

II. Netherland’s Position

III. Sweden’s Position

V. Questions to Consider

VI. Works Cited

VIII. Witness Overview

2 

Notes from the Chair

This synopsis will act as your guide to committee, however, it should not be your only

resource. You are highly encouraged to thoroughly research the cases and possible

witnesses/evidence, but keep in mind that the sessions will take place on 12 December 1957 and

you may only use the resources existent before this date. Since this is a historical committee, the

actual outcomes of the hearings do not matter; it is up to you to change the course of history.

Note, instead of being a delegation representing a country, you are Justices of the International

Court of Justice (essentially judges). While you are expected to convey personal opinions on

these cases based on your own moral beliefs, your position should also reflect the policy of your

assigned country of origin. This is designed to be an advanced committee; we will be challenging

your ethics and depth of knowledge regarding the topics. As the International Court of Justice

follows a different procedure than other United Nations bodies, feel free to contact us with any

questions you have regarding committee. Good luck, and we look forward to chairing an

exciting discussion with all of you!

Your head chairs,

Jessica Nguyen

Victoria Westover

edisonmunicj@gmail.com

3 

Committee Procedure

The International Court of Justice follows a slightly different procedure compared to most

United Nations committees. Understanding that this may be a new experience for many of you,

we have outlined the committee procedure below. Please carefully read through it so that you

may come to committee prepared and ready to begin debate.

I. Beginning Hearings

A. Roll Call

1. Instead of calling for delegations we will be calling for justices.

2. Since the goal of the committee is to establish a case bloc decision, there

will be no choice for present or present and voting. Every Justice is

expected to be active throughout committee and every Justice is expected

to vote at the end of committee.

B. Motion to Open Debate

1. This process is run the same as all other MUN committees.

C. Opening Statements

1. The prosecution lawyer will present first, summarizing what they are 1

going to prove with their evidence.

2. The defense lawyer will present their opening statement second. 2

II. Debate

1 The prosecution is the applicant state in the ICJ. 2 The defense is the respondent state in the ICJ.

4 

A. Justices will be allowed to ask the lawyers any questions, specifically pointing out

which lawyer the question is being addressed to, in Round Robin style unless 3

otherwise motioned.

B. Presentation of Witnesses

1. Witnesses for the applicant will be presented first.

a) They will be sworn in, questioned by the applicant lawyer, then

cross examined by the respondent lawyer.

b) A redirect may occur, if motioned as such, where the applicant

lawyer may address points brought up in the cross examination.

2. Witnesses for the respondent will be presented and follow the same order.

3. After each witness, we will have an unmoderated caucus followed by a

moderated caucus (unless otherwise motioned) to discuss how the witness

affects the verdict amongst the Justices.

C. Submission of Evidence

1. Evidence will be submitted to the Court with a statement by each lawyer.

2. After each piece of evidence, we will have an unmoderated caucus

followed by a moderated caucus (unless otherwise motioned) to discuss

how the witness affects the verdict amongst the Justices.

D. Any other motions will be entertained during this portion, as it will take up the

majority of our time.

III. Deliberations

3 Round Robin is when the Speaker’s List is formed alphabetically by country name; the room will be arranged as such.

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A. This is the equivalent of voting bloc in a normal committee.

B. Essentially, it is a lengthened unmoderated caucus (discussion will be monitored

by the chair) to form blocs of opinion.

1. A majority bloc will form, meaning the majority of Justices agree, as well

as a possible minority bloc.

2. Minority judgement blocs may fall under two classifications:

a) Separate but concurring - the bloc is apart from the majority but

agrees with its decision on different legal grounds

b) Separate and dissenting - the bloc is apart from the majority but

disagrees with its decision and legal grounds completely

3. The majority opinion is the binding decision of the Court, however the

minority opinions are also read to the Court.

See the list of motions you can make on pages 10 and 11 of this synopsis.

Important Note: Both of the ICJ cases we will be discussing are contentious, meaning that the

rulings issued by the court will be binding as long as the states agree, or have previously agreed,

to submit to the ruling of the court.

6 

Writing Your Position Paper

Your position papers are very different, since you are not representing a nation, you are your

own entity from a respective nation. You will be guided by your own morality, however your

country’s normative law and standard punishments must be respected. For example, if you were

Justice Smith of Norway, you could not punish a nation with sanctions if the Netherlands

publicly opposes the utilization of sanctions.

Format for Position Paper:

Your paper should be no longer than 4 pages.

I. Background

- Discuss the case background.

- Any witnesses you may know of from your research.

- On what basis, if any, does the ICJ have jurisdiction on this case?

- Should be around 1 to 1 1/2 pages long.

II. Country Policy

- Discuss what your country’s view on appropriate punishments are.

- Is your country active in any other ICJ cases now or in the past (remember: prior

to 1957)? More importantly, how did it accept the ICJ’s jurisdiction? (Countries

do so through special agreements, jurisdictional clauses in treaties or agreements,

or declarations; most commonly, it is by signing onto the UN Charter)

- What other nations, organizations, or entities does your country ally with or is a

part of?

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- How will this background and information affect your verdict as a Justice?

- Should be around 3/4 to 1 page long.

III. Future Precedent

- How will the outcome of this case affect what may lie ahead in the future?

- Will this cause any immediate or long-term effect of any sort in your country?

(Note: you are writing this from the perspective of your nation in December of

1957; they should not specifically address any events occurring beyond this date.)

- Should be around 1/2 of a page long.

IV. Draft Opinions

- This section is very brief, and the equivalent to pondering solutions before your

committee.

- Think of what your opinion will be based on the information you have seen thus

far.

- Please refrain from forming an actual case bloc decision, you do not need to

follow the format that you will follow during committee.

- Please note that witnesses and evidence are going to be introduced that may

change your opinion.

- Should be around 1/2 of a page long.

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Writing Your Case Bloc Decisions

During deliberations it is your jobs to form the blocs during lengthened unmoderated caucus.

However your discussion will be focused on forming the majority and minority bloc(s). This is

when you will write your case bloc statements, the equivalent to resolutions.

Format for Case Bloc Statement:

Justice Name(s)

12 December 1957

In the case of ____ vs. ____,

Understands the facts that:

1. These are what facts your bloc finds to be true.

2. Feel free to refer to witnesses, evidence, etc.

3. These don’t have to be limited to 3, it may be as long as you wish.

Finding, judicially, that:

1. These should explain what you found broke international law.

2. For example, you should state what article of a treaty what party broke.

3. Use legal logic.

Delivers the following decision:

1. This is an explanation of what you do or give unto the respondent country.

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List of Motions

Motion to Open Debate: Opens the committee to debate.

Motion to Introduce the Advocacy: Introduces the lawyers (applicant, respondent), which is

necessary for the Court to begin hearing.

Motion to Question the Advocacy: Begins the Round Robin questioning of the lawyers after

their statements. Can be motioned to be formed by Justices volunteering to add

themselves to the speaker’s list (the default method).

Motion to Dismiss the Advocacy: Only can be motioned during times of deliberation and is

necessary to do so.

Motion to Introduce the Witnesses and Evidence: Brings in the witnesses and evidence for the

applicant and respondent. Comes after hearing and questioning the advocacy. The order

of presentation will be determined and given by the Chair. Witnesses will be actual

people being questioned by the applicant or respondent lawyer and testifying. Evidence

will be shown to the Court or passed out in paper copies.

Motion for a Moderated Caucus: Self-explanatory.

Motion for an Unmoderated Caucus: Self-explanatory.

Motion for a Letter Rogatory: Request for another court or UN body’s jurisdiction on a

subject.

Motion for Additional Questioning: Motions to question a lawyer or witness another time or

for more time.

Motion to Enter Deliberations: Equivalent of motion to enter voting bloc.

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Motion to Present Case Bloc Decisions: After the period of deliberations, the Court will hear

and present each blocs opinions.

Motion to Close Debate: Self-explanatory.

Motion to Suspend Debate: For breaks, self-explanatory.

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Case 1: Aerial Incident of 27 July 1955

(Israel v. Bulgaria)

Case Background

On the morning of July 27, 1955, the civil Lockheed Constellation aircraft El Al No.

4X-AKC, Flight 402, belonging to El Al Israel Airlines Ltd, made an international passenger

commercial flight from London, England to Tel Aviv, Israel by passing over Vienna, Austria and

Istanbul, Turkey. The aircraft could clearly be identified as Israeli due to its composition of the

Israeli colors, white and blue. The Constellation aircraft begun its scheduled weekly flight from

London, England, and arrived to Vienna’s Wien-Schwechat International Airport (VIE) at 2:53

a.m. It then departed from VIE to Tel Aviv’s Lod Airport in Istanbul. The El Al flight flying at

an altitude of approximately 18,000 feet above sea level veered off course of the Amber 10

airway, for reasons unknown to Bulgarian and Israeli government investigators. The aircraft

swerved into Bulgarian territory at a total of 200 km (120 miles) over their country and a 120 km

(75 miles) distance from the Bulgarian border before being shot down by MiG-15 jet fighters

belonging to the Bulgarian anti-aircraft defence forces. As the plane neared Bulgaria’s Southern

border and was about to cross into Greek airspace, the MiG-15’s fired causing the unauthorized

Israeli commercial airliner to explode at an altitude of 2,000 feet. The plane’s pieces fell near the

town of Petritch, Bulgaria. There were no survivors as all seven of the crew members, along

with the fifty one passengers of various nationalities, were killed in the crash. This incident

occurred during one of the most severe standoffs of the Cold War, so each nation, Israel

belonging to the Western Bloc and Bulgaria belonging to the Eastern Bloc, interpreted the event

as a serious affront. Due to the highly strained tensions between Eastern and Western nations at

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this time of the Cold War, attempted diplomatic practices did not lead to satisfactory results for

either party. On October 16, 1957, the Government of Israel initiated proceedings against the

Government of the People's Republic of Bulgaria with the World Court.

As the event was investigated the following probable cause statement was announced to

the public:

“The aircraft sustained a hit or hits which caused loss of pressurization and a fire in the heater

compartment. The aircraft broke up in mid-air due to explosion caused by bullets hitting the

right wing and probably the left wing together with a projectile or projectiles of large calibre in

the rear end of the fuselage”

One belief as to why the Israeli Flight 402 veered off course is because of thunderstorm

activity in the intended flight path of the Amber 10 airway. The thunderstorms might have

damaged the navigational equipment, allowing the Israeli pilot and crew to believe they were

flying over the usually followed Skopje radio beacon, not penetrating over Bulgarian territory.

However, this theory is not supported by any factual evidentiary documentation of thunderstorms

in the area, but is noted from Israeli pilots’ observational statements after being questioned on

flying conditions.

Bulgaria’s Position

The Bulgarian Communist Government at first dismissed their responsibility in the

incident and viewed the accident as a primarily political negative in the peaceful Eastern and

Western relations that had been achieved at the Geneva talks a few months earlier that same

year. The Bulgarian government blamed Israel for allowing the airliner to penetrate its airspace

without any authorization or preliminary warning. However, after the occurrence, both

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Bulgarian pilots activated in the shooting were investigated for demotion and threatened with

prison by the Bulgarian minister of the interior Georgi Tzankov. Neither pilot ended up going to

prison, as the investigation showed the pilots only obeyed the orders they were given. Bulgaria

acknowledged that its military had in fact shot down the plane, and Israel did not challenge that

they had drifted into Bulgaria lacking authorization. However, the Bulgarian pilots claim they

had undergone standard protocol for such cases by firing warning shots across the front of the

aircraft. The pilots testified that after the warning shots, the airliner moved its flap wings, a

universal movement understood to signify intention to follow, in this case Bulgarian,

instructions. The aircraft then turned sharply towards the south breaking away is if it was

determined to escape. The Bulgarian air defense commander told his pilots that if a plane is

“leaving our territory, disobeying orders, and there is no time left for more warnings, then shoot

it down”. Bulgaria argued inter alia (specifies one example over many possibilities) that the ICJ

had no jurisdiction over Israel’s claim considering that Israel failed to exhaust local remedies.

The local remedies rule is a well-established international law stating that “local remedies must

be exhausted before international proceedings may be instituted”. It means that a State must be

given the opportunity to rectify an alleged wrong within the framework of its own domestic legal

system before its international responsibility is called into question at the higher level of scrutiny

by regional, or in this case, international organizations. This rule is generally observed in cases

where a country has adopted the cause of its national whose rights are claimed to be neglected in

another country in violation of international law. Customarily under international law, a country

is not required to consider a claim by another nation for an injury to its national until that country

has expended domestic remedies. The Bulgarian government used the detail under the local

14 

remedies principle that “the State against which an international action is brought for injuries

suffered by private individuals has the right to resist such an action if the persons alleged to have

been injured have not first exhausted all the remedies available to them under the municipal law

of that State”.

Israel’s Position

Israel claimed that Bulgaria is responsible for the incident under international law for the

destruction of Israel aircraft 4X-AKC, for the loss of life, property, and all other damage that

resulted from the shooting incident. Israel’s application to the International Court of Justice

invoked Article 36 of the Statute of the Court and the acceptance of the de rigueur (prescribed by

custom) jurisdiction of the Court by Israel. Article 36 of the Statute of the Court states that the

“jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially

provided for in the Charter of the United Nations or in treaties and conventions in force”,

meaning Israel believed the court had jurisdiction because they were a member party referring to

a significant case. Furthermore, the ICJ has jurisdiction of the court in legal disputes regarding a

multitude of topics but especially “any question of international law or the nature or extent of the

reparation to be made for the breach of an international obligation”. Israel also disputed that

because the incident had been a direct interstate wrong, the local remedies principle was

inapplicable.

Case Study

Interhandel (Switzerland v. United States of America) 24 October 1957

During World War II, the United States of America confined trades with its enemies and

blocked the assets of enemy properties. In 1946, the United States, along with Great Britain and

15 

the Soviet Union, agreed to unblock Swiss assets in the United States. However, the United

States refused to unblock the assets of Interhandel, a Swiss company that owned a group of

industrial and financial businesses in Europe and the United States. This is because the United

States believed the Swiss company still had connection with the Germany (enemy of the Allies

during WWII). Switzerland disputed otherwise saying Interhandel’s connection with Germany

was severed in 1931 before the United States joined the WWII war effort. Switzerland brought

the case to the attention of the International Court of Justice to have the United States be required

to unblock Interhandel’s assets, however the United States raised four preliminary objections.

The third objection dealt with the failure of the Swiss to exhaust local remedies before taking the

case to an international body. Switzerland contended that the affairs at the local court in the

United States were based on the Trading with the Enemy Act of 1917 and therefore local

remedies were exhausted. The ICJ refused the Swiss’ argument and agreed with the United

States stating that the differentiation between the various claims and the tribunals is baseless.

The interest of the local claim has the same foundation for the claim presented before the ICJ and

because the local claim effected the Swiss Government to install international proceedings. The

ICJ denied jurisdiction because the Interhandel case had not yet exhausted all local remedies

since the case was still pending at the time at the local court in the United States.

Questions to Consider

1. Does the International Court of Justice have jurisdiction over the Israel v. Bulgaria case

considering the local remedies principle? Why or why not?

2. Should Bulgaria compensate Israel for the loss of their airliner and the deaths of the 58

people on board Flight 402?

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3. Did Israeli Flight 402 pose a threat to Bulgarian national security?

4. Since the Israeli commercial airliner had not obtained previous authorization to penetrate

over Bulgarian territory, did Bulgaria violate international laws?

5. Did Bulgaria have legal authority to shoot down the Israeli plane considering the

international community was faced with high tensions and strained relations at the time

of the incident during the Cold War?

6. Should the Bulgarian military have identified the airliner as a commercial passenger

flight that poses no threat to security and taken less extreme measures?

7. What are the policies of other major powers during the Cold War (United States of

America, Russia, etc.) regarding unauthorized foreign planes flying over their airspace?

Is there a difference in policy for commercial flights versus military planes?

17 

Works Cited

http://www.icj-cij.org/docket/index.php?sum=154&p1=3&p2=3&case=35&p3=5

https://www.jstor.org/stable/1370973?seq=1#page_scan_tab_contents

https://en.wikipedia.org/wiki/El_Al_Flight_402

http://www.dipublico.org/100869/aerial-incident-of-27-july-1955-israel-v-bulgaria-international-

court-of-justice/

https://books.google.com/books?id=2fQjCQAAQBAJ&pg=PA501&lpg=PA501&dq=what+right

+did+bulgaria+claim+it+had+for+aerial+incident&source=bl&ots=5advPJ6WUV&sig=mKXNi

_nHJmS6_xfAZLb04WDzPVQ&hl=en&sa=X&ved=0ahUKEwic2ondhI3UAhWGr1QKHfO0Bi

8Q6AEIMjAC#v=onepage&q=bulgaria&f=false

https://www.jstor.org/stable/760120?seq=1#page_scan_tab_contents

http://cadmus.eui.eu/bitstream/handle/1814/6701/LAW_2007_02.pdf

http://www.academia.edu/6149783/The_Interhandel_case_summary_Exhaustion_of_Local_Rem

edies

http://www.icj-cij.org/documents/index.php?p1=4&p2=2&

18 

Case 2: Application of the Convention of 1902 Governing the Guardianship of Infants

(Netherlands v. Sweden)

Case Background:

Marie Elisabeth Boll was born on 7 May 1945 at Norrköping, Sweden to Johannes Boll

and Gerd Elisabeth Lindwall. Her father Johannes Boll is a Netherlander by birth and her mother

Gerd Lindwall, though born in Sweden and originally a Swedish citizen, acquired Dutch

citizenship upon her marriage to Boll. Since both of her parents have Dutch citizenship, Marie

Elisabeth Boll is also considered a Netherlander despite being born in Sweden and permanently

residing in Sweden with her mother. Unfortunately, Gerd Elisabeth Boll died on 5 December

1953. Adhering to Article 378 of the Civil Code of the Netherlands, guardianship of the infant

child automatically went to the sole surviving parent Johannes Boll. Unfortunately, as a ship’s

captain Johannes Boll was often unable to give adequate care to his daughter, constantly being

called out to sea. As pursuant to Swedish law of guardianship, on 18 March 1954—without

reference to the child’s Dutch nationality—the Second Chamber of the Court of First Instance at

Norrköping (Sweden) accepted Johannes Boll’s application to register his guardianship and his

appointment of Emil Lindwall, Marie’s Swedish maternal grandfather (father of Gerd Elisabeth

Boll, née Lindwall), as the curateur, or “god man,” of Marie. The concept of a god man is

similar to that of a deputy guardian, a person responsible for assisting the incapable person in all

acts which the person can not perform alone, appointed in principle by the guardianship judge.

Following this, Sweden continued to take action concerning the care of the infant by the Child

Welfare Board of Norrköping (Sweden) placing her under the regime of protective upbringing,

or skyddsuppfostran, as according to Article 22 (a) of the Swedish Law of 6 June 1924

19 

concerning the protection of children and young persons, essentially making Marie a ward of the

court. By doing so, Sweden believed that it was taking responsibility for a child in its country,

and thus in its care, who was suffering from neglect in her parental home due to her father’s

prolonged absences. This decision to submit Marie to skyddsuppfostran was later confirmed by a

resolution of the Östergötland County Government (Sweden). The resolution states: “The Child

Welfare Board takes measures...in respect of children under sixteen years old that, in the parental

home, are treated badly or are exposed to serious neglect, or to other danger to physical or

mental health.” Sweden also eventually dismissed Emil Lindwall as curateur of Marie Boll on

16 September 1954, deeming him unfit.

Simultaneously as Sweden was pursuing its own law of guardianship, the Netherlands

was also following its own procedure concerning the protection of its infant citizen. On 2 June

1954, the Justice of the Amsterdam Cantonal Court (Netherlands) appointed Jan Albertus Idema,

a notary and Netherlander of Dordrecht, as their deputy guardian for the Boll family. Later on,

upon seeing that the ship’s captain was so frequently absent from home, the Guardianship

Council of Dordrecht applied to court with the consent of the father for the discharge of Johannes

Boll’s guardianship of his daughter. Subsequently, the Court of First Instance of Dordrecht

(Netherlands) agreed to this request on 5 August 1954 and appointed the care of Marie Boll to

Catharina Idema, née Postema, the wife of deputy guardian Jan Albertus Idema. However, since

Marie was already held under skyddsuppfostran by Sweden by this time, the care of the child

wasn’t able to be immediately handled to the Dutch appointed female guardian. The next year on

28 October 1955, both the paternal deputy-guardian Jan Albertus Idema and Catharina Trijntje

Idema petitioned to the Dutch court against Sweden’s institution of the “skyddsuppfostran” and

20 

tried to convince the Östergötland County Government (Sweden) to rescind the decision of the

Child Welfare Board of Norrköping (Sweden), ordering the discontinuation of this protective

upbringing practice. In response to these petitions and written and oral appeals from the

Government of the Kingdom of the Netherlands, the Swedish Supreme Administrative Court

made its final judgment to maintain its measure of skyddsuppfostran on 21 February 1956. Thus,

on 10 July 1957 the Government of the Kingdom of the Netherlands submitted its application

instituting proceedings against Sweden, asking the Court to declare that the measure of

protective upbringing is not in conformity with the obligations binding upon Sweden by virtue of

the Convention of 1902 Governing the Guardianship of Infants and to order termination of

skyddsuppfostran.

Netherlands’ Case:

The Government of the Netherlands believes that the Swedish institution of

skyddsuppfostran is an overstepping of boundaries and disrespectful to the child’s biological

parents. The Dutch government argues that Sweden is misinterpreting the Hague Convention

governing the guardianship of infants to its own advantage. The Hague Convention was the

Hague Conference's first effort at addressing international family law and was party to countries

such as Belgium, Italy, Poland, Spain, France, Germany, Hungary, the Netherlands, Sweden and

Switzerland. Article 7 of the Hague Convention, translated from French to English, states:

“Pending the organization of the guardianship and in all cases of urgency, the necessary

measures for the protection of the person and the interests of a foreign minor may be taken by the

local authorities.” The Netherlands argues that this exception does not apply to the case of Marie

Elisabeth Boll since the Swedish protective upbringing is infringing upon the guardianship of a

21 

child belonging to a different citizenship and that the level of urgency of her situation is not

considered serious enough for the employment of skyddsuppfostran.

Sweden’s Case:

The Government of Sweden does recognize that its employment of skyddsuppfostran

does temporarily impede upon Johannes Boll entitled right to custody by the Dutch law.

However, as this case pertains to its application of the 1902 Hague Convention, it continues to

defend its lawful position and finds itself to be in the right. When it was decided that Marie Boll

would become a ward of the court, the guardianship belonging to the father was not considered

as belonging to the puissance paternelle, or parental authority, governed by the 1902

Convention. Sweden points out that the Hague Convention would not have been applicable in the

case of a female guardian either. Since Marie is a permanent resident of Sweden despite having

Dutch citizenship, Sweden upholds its decisions to protect her under skyddsuppfostran, arguing

that Swedish Law for the protection of children applies to any and all infants residing in the

territory of Sweden. On the other hand, the 1902 Convention is only applicable in cases that the

guardianship has conflicts in law. As a measure belonging to the category of ordre public, or

doctrine of public policy, Sweden’s measure of skyddsuppfostran for the protective upbringing

of Marie Elisabeth does not in fact violate the debated Hague Convention. Though being a party

state of the 1902 Convention, Sweden still has the right to make the powers of a foreign guardian

within its jurisdiction subject to its restrictions if for the good of the public, and in this case, the

good of the child.

Case Study:

Gonzalez v. Reno, United States 11th Circuit Court of Appeals (2000)

22 

It is understood that the events of this case study occurred after the date of our session but for the sake of providing

Justices with the most helpful information this particular case was chosen.

Elian Gonzalez was born in Cuba in December 1993 to Juan Miguel Gonzalez and

Elizabeth Gonzalez. When the child was approximately three years old, his mother and father

separated. Although custody went to his mother Elizabeth, his father Juan Miguel was still able

to maintain regular contact with his son. On 22 November 1999, Elizabeth and Elian boarded a

small boat with twelve other nationals. Unfortunately, due to strong winds and rough seas, all of

its passengers died, with the exception of a scared, motherless young boy who was able to cling

to an inner tube for survival. Elian was rescued two days later by Florida fishermen and

immediately transported to a Miami hospital to receive medical treatment, during which Elian’s

great-uncle Lazaro Gonzalez contacted the Immigration and Naturalization Services regarding

his young orphaned relative. The officials decided that Elian should not be forcibly removed

back to Cuba immediately upon hospital release, instead deferring their immigration inspection

and putting him under Lazaro’s custody.

Soon after receiving the responsibility for Elian’s care, Lazaro applied for asylum with

the INS on behalf of his great-nephew, claiming that Elian “is afraid to return to Cuba.” On the

other hand, Elian’s father Juan Miguel wrote a letter eventually forwarded to INS, appealing for

his son’s return. After consulting with both sides, the INS decided that—considering Elian’s

age—the asylum applications held no legal merit. Elian and Lazaro then took this issue up with

federal district court, asking the INS for a reconsideration but the suit was dismissed. The main

focus of this case concerned the separation of powers under our constitutional system of

government.

23 

Questions to Consider:

1. Who do you think has more say in this case—the child’s country of residence or country

of citizenship?

2. What is each country’s laws and practices regarding guardianship of a child?

3. What is your country of origin’s laws and practices regarding guardianship of a child?

4. What do you believe is the most viable outcome for the child, Marie Elisabeth?

5. Does the Convention of 1902 justify Sweden’s protective upbringing of Marie Elisabeth?

6. Should Johannes Boll have any form of guardianship over his biological daughter despite

his initial consent to discharge guardianship?

24 

Works Cited:

http://sccounty01.co.santa-cruz.ca.us/personnel/Specs/DG4spec.html

http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1733&context=dlj

http://www.icj-cij.org/docket/files/33/10705.pdf

http://www.icj-cij.org/docket/files/33/11191.pdf

http://www.icj-cij.org/docket/files/33/11195.pdf

http://www.icj-cij.org/docket/files/33/12427.pdf

http://www.icj-cij.org/docket/files/33/2259.pdf

http://www.icj-cij.org/docket/files/33/2261.pdf

http://www.icj-cij.org/docket/files/33/2265.pdf

http://www.icj-cij.org/docket/index.php?sum=145&code=nls&p1=3&p2=3&case=33&k=37&

p3=5

https://books.google.com/books?id=q_L23IXwnFQC&pg=PA234&lpg=PA234&dq=catharin

a+postema&source=bl&ots=L8JhNmmQby&sig=Wgrzfd9r4wKP_vXv_-LOmgLr7B8

&hl=en&sa=X&ved=0ahUKEwib5PiQ0qfUAhUEw2MKHSrhCZYQ6AEISjAM#v=o

nepage&q=catharina%20postema&f=false

https://en.wikipedia.org/wiki/Boll_case

https://www.jstor.org/stable/2195822?seq=1#page_scan_tab_contents

http://www.nytimes.com/2000/06/02/us/elian-gonzalez-case-overview-court-upholds-ins-s-reject

ion-asylum-effort-for.html?src=pm&mcubz=2

http://caselaw.findlaw.com/us-11th-circuit/1418748.html

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