Legal Implications of Various Issues Affecting Canada: Examination Questions

Examination Questions

You are an advisor at Global Affairs Canada. Your Minister, Marc Garneau, has spent the past month preparing for a possible Cabinet shuffle. He has some lingering questions concerning various important but obscure issues affecting Canada and would like to prepare notes for his replacement – or his own new term as Foreign Minister. He has asked you to prepare a short paper addressing the legal implications of some of these issues, identified below, keeping in mind the

 

previous and following instructions:

First and foremost, the Minister implores you to answer all of the following questions.

In doing so, all pleasantries can be assumed; that is, there is no need to begin by saying “Dear Minister, you have asked me to address [x] and I am so very pleased to have the opportunity to do so under your very wise and able leadership, which I hope continues well into 2022.” He already knows just how happy you are to be working at GAC so you can stop sucking up and skip right to the substance of your answer.

 

In all cases, provide detailed reasons for your answers, within the required space limitations. Strict compliance with the stated word limits is required. The Minister does not have the time or the inclination to read a novel, particularly one written by a GAC advisor.

 

If there is ambiguity in the question, and the deadline for requesting clarification has passed, please answer the question to the best of your ability. As part of your answer, highlight what further information is required from the Minister in order to provide a full answer, along with the reasons why this information is required.

 

Part I

Part I relates to the following fact scenario:

Current UN Secretary-General Antonio Guterres is a national of Portugal. He recently conducted an official visit to Ottawa. In a rather unusual development – demonstrating a surprising degree of local knowledge – he ran over to a parked OCTranspo train and scribbled on it with black marker, writing “public transportation is very important and this should really have been fixed by now”. [In case you are working remotely, Minister Garneau notes that the entire Ottawa light-rail system has not been working for almost a month now.]

 

Immediately thereafter Mr. Guterres stated publicly, “what I’ve done was clearly an internationally unlawful act, for which there is absolutely no lawful excuse. To be honest with you, I just couldn’t help myself. Good public transportation is just so important.

Part I relates to the following fact scenario

 

Assuming that what Mr. Guterres did was an internationally unlawful act – and, frankly, that might be disputed – the Minister would like to ask for compensation for the damage done to “that beautiful albeit quite useless train”. That said, he is uncertain whether to ask for this from the United Nations or Portugal or, possibly, both (“just to be safe”).

 

Question 1

What legal advice can you provide Minister Garneau to help guide this decision?

PART II

Part II relates to the following fact scenario:

One year ago, as a result of underwater volcanic activity, a small island measuring four square miles formed in the South Porselin Sea. Even at high tide, most of the island remains above water. It is located more than 400 nautical miles from the nearest land.

 

Following its emergence, the island was immediately claimed by the state of Porselin, which established a small environmental research outpost on it. Porselin is a coastal state bordering on the South Porselin Sea. It has not historically used any waters within 100 miles of the newly formed island, nor is it even the closest regional state to this new landmass. Nonetheless, there have been no competing state claims to the island to date and none are expected.

 

Following its claim, Porselin indicated that “no foreign vessel, civilian or military, will ever be permitted to sail within 20 nautical miles” of its newly acquired island, “which now forms part of our indivisible sovereign territory”.

 

A Canadian-flagged and registered cruise ship is approaching this area, on a routine trip from Canada to visit Elbonia. It plans to follow a course taking it as close as 10 nautical miles from the new island’s shoreline, which is its usual and most direct path to its destination. The Captain intends to keep to this course unless international law prohibits her from doing so. She has asked Global Affairs Canada for its advice on the matter.

 

Question 2

What is your advice concerning whether the ship can lawfully maintain its present course in light of Porselin’s claims?

 

PART III

Part III relates to the following fact scenario:

Over the past few years, a strange but at-times heated dispute has rattled the United Nations. It turns out that many state leaders are very serious fans of Star Trek, while others are equally serious fans of Star Wars. Unfortunately, with the notable exception of the President of Switzerland, no state leader is a fan of both.

Question 1

This situation has led many state leaders to make elaborate public displays of their respective fandom. Indeed, at the height of the dispute, former American President Trump’s administration even appeared to incorporate a Star Trek symbol into the official insignia of the newly established US Space Force (though, in fairness, it might not actually have done so).

 

To bolster their own positions, Canada and Elbonia agreed to a bilateral treaty requiring their respective Prime Ministers to wear Star Wars-themed socks at least once every year, on May 4th. This treaty entered into force on 1 January 2017 and since that time each state has fully complied with its obligations. In fact, both leaders are known to wear Star Wars socks much more frequently than once a year (something encouraged but not required by the treaty).

Article XI of this treaty establishes that it “shall remain in force in perpetuity or until both states agree otherwise.” The Preamble notes that Star Wars itself “will live forever in our hearts.”

 

In 2018, concerned that this issue was leading many state leaders around the world into increasingly gharish fashion choices that often hurt his eyes, UN Secretary-General Guterres formally recommended that no state leader ever wear any space-themed clothing ever again. Despite this recommendation, many state leaders, including those from Canada and Elbonia, continued to wear Star Wars or Star Trek clothing (though no longer at the UN itself).

In 2019, the UN General Assembly took up this cause. Late that year, it passed Resolution 74/241 ½ noting that all state leaders “are obligated to immediately, in all circumstances and for all time” stop wearing any Star Wars or Star Trek clothing, characterizing this issue as “unnecessarily silly”. A large majority of states present and voting supported this resolution, but over 50 states, including Canada, abstained from the vote. This resolution did not, however, lead to a noticeable decline in space-themed clothing choices by state leaders.

 

Tensions continued to rise between the two factions, within and outside of the United Nations. In early June 2021, in one regrettable instance, treaty negotiations to prohibit space-based lasers failed when delegates from half of the participating states refused to adopt a text until the others removed their Luke Skywalker-themed hats. In turn, this led the President of Endor, a strong proponent of Star Wars, to threaten to invade the neighbouring state of Vulcan “to stop, once and for all, the production of Captain Kirk tights and all other offensive Star Trek clothing”.

Part II

 

Later that same month (ie. June 2021), the UN Security Council met to discuss this issue and to consider a draft resolution to put an end to this situation, which it noted was now posing a “threat to international peace and security”. A UN press release noted that “in a wonderful show of unity, all UN Member States have accepted this characterization”.

 

Invoking its authority under Chapter VII of the UN Charter, the Security Council adopted Resolution 2580 ¾ with a vote of ten states in favour, none against, and all five permanent members abstaining, on 25 June 2021. This resolution established that “all state leaders and other representatives from all United Nations Member States are hereby prohibited from wearing any Star Trek or Star Wars-themed attire.”

 

The Prime Minster of Elbonia recently called her Canadian counterpart to discuss the situation. She informed Prime Minister Trudeau, in no uncertain terms, that as far as she and Elbonia are concerned he remains legally required to continue to wear Star Wars socks next year. She emphasized that “no permanent members supported this resolution, after all, which is a requirement, and anyway we both have a treaty to uphold.”

 

Minister Garneau is about to meet with Prime Minister Trudeau to discuss this situation. He informs you that the Prime Minister is deeply concerned about two specific issues:

 

a)whether he was required to refrain from wearing his favourite Star Wars socks earlier this year, on 4 May 2021 (“R2D2, if you must know”) and,

b)whether he is required to refrain from doing so again next year.

 

Question 3

What legal advice can you provide to the Minister to help address these two concerns?

 

PART IV

Part IV relates to the following fact scenario:

In an unheralded 2005 advisory opinion, the International Court of Justice concluded that “customary international law does not prohibit the production or consumption of purple Popsicles™ or other similar purple treats employing frozen water or other liquids [hereinafter referred to as popsicles to avoid being annoying].” The General Assembly had requested this opinion following an unfortunate incident in the United Nations cafeteria when six historic white tablecloths were ruined by indelible purple stains.

 

In reaching its opinion, the Court noted that “purple popsicles are, indeed, quite popular – many would say truly yummy – though they are admittedly quite messy.” In support, it cited compelling evidence demonstrating purple popsicle production and consumption “in almost every state of the world, backed by obvious and widespread state opinio juris supporting this behaviour.”

Part II relates to the following fact scenario

 

Nonetheless, in 2008, Canada, Contraria and three other states met to negotiate a treaty banning the consumption of purple popsicles at official state functions, worried that a failure to do so “might lead to unfortunate and embarrassing diplomatic incidents”. A final treaty text – the Purple Popsicle Pact – was adopted in 2009. It entered into force for all five states in 2010.

 

Article I of the Pact establishes that “each Party shall prohibit the consumption of purple popsicles at all official state functions held on its territory.” No exceptions to this prohibition are established in the treaty.

 

Article VI requires each Party to enact domestic legislation permitting the criminal prosecution of “any individual engaged in activities prohibited by the Pact”. It further requires that Parties extend the application of this domestic criminal legislation to include prohibited acts taking places within the territory of any other Party, in addition to their own.

 

All five states, including Canada, enacted this domestic criminal legislation as required, prior to their respective ratifications of the Pact.

Article VII establishes that all Parties “waive all state immunities” in relation to the enforcement of any treaty prohibition or related domestic law by other Parties.

Article X establishes that “Any amendment to this Pact will enter into force for all Parties one month following the fourth ratification, accession, approval or acceptance of that amendment.”

 

Article XI establishes that “This Pact shall remain in force in perpetuity or until such time as all Parties agree otherwise.”

Article XII establishes that “The International Court of Justice shall have jurisdiction to address any dispute arising from the application or interpretation of this Pact.”

 

In 2010, Contraria noted in its instrument of ratification that it “consents to be bound by the Pact with the exception of Article VII.” None of the other states objected to this proposed exception by Contraria. Indeed, two of them, including Canada, expressly accepted it. The Minister notes that Contraria “is very difficult to please sometimes.”

 

Over the following years, the Pact led to an unprecedented level of engagement between the five states, which had been freed from the risk of any diplomatic popsicle incidents. Nonetheless, privately, many state officials began to complain that they missed serving purple popsicles in hot summer months, despite their inherent mess-making potential.

 

In 2018, the five states met and adopte d the text of a proposed Pact amendment permitting consumption of purple popsicles at official state functions held during the month of August.

Question 2

 

Canada and three of the other Parties to the Pact ratified this amendment in May 2018. At the same time, these four states also amended their domestic legislation accordingly, so that it no longer prohibited the consumption of purple popsicles during August.

 

Beginning in 2018, every August, Minister Garneau has enjoyed serving – and, definitely, eating – purple popsicles at all of his official state functions in Canada. (Privately, he admits that this “has led to the ruin of a great many tablecloths, but it is so, so worth it!”)

 

Unlike Canada, though, Contraria did not ratify the treaty amendment. Indeed, its potential ratification became such a controversial domestic political issue that it led to the election of a new government in mid-2018. As its first act, this new administration publicly declared that Contraria would never agree to the amendment, noting that “we are a proud Purple Popsicle Pact Party and we will honour our commitments, made in good faith, without exception.”

Despite protestations from the other Pact Parties, Contraria has refused to make any changes to its domestic legislation criminalizing the consumption of purple popsicles during official state functions, at any time, in the territory of any Party to the Pact.

 

Contraria has recently formally withdrawn its acceptance of the compulsory jurisdiction of the International Court of Justice, made under Article 36 of the Court’s Statute. In doing so, it noted that it would never again agree to submit a dispute to the Court relating to the Pact.

 

Despite these developments, as a demonstration of goodwill, Minister Garneau travelled to Contraria in September 2021. Unfortunately, the moment he stepped out of his airplane he was arrested by a Contrarian border guard who informed him that “our law prohibits your consumption of purple popsicles, as it should.” He added, “we may not have waived immunity, but you did. Ha ha.”

 

Minister Garneau was subsequently convicted of “illegal consumption of a purple popsicle at an official state function” in a Contrarian criminal court. After serving a symbolic one-day sentence he was deported from the country and quickly returned to Canada.

 

He is now quite annoyed and is recommending that Canada initiate ICJ proceedings against Contraria. In particular, he wants Canada to ask the Court to require Contraria to “apologize for its unlawful behaviour and to admit publicly that its actions were very childish, even for it.

 

Question 4

Please advise the Minister on all of the international legal issues raised by this scenario.