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PUBLIC INTERNATIONAL LAW

SAMPLE FINAL EXAMINATION # 2

Prof. John H. Currie
_____________________________

Duration: Two hours.

Instructions: 1. This is an open book examination. You may bring into the examination room
and freely consult any materials subject only to reasonable space limitations
as determined by the invigilator(s).

2. This examination is worth 50% of your final grade if you have submitted a
paper in the course, or 100% of your final grade if you have not.

3. The examination is in two parts. Answer both Part A and Part B.

4. Part A consists of a fact situation followed by two sets of questions. Answer

all questions posed in Part A. The total value of Part A is 75%.

5. Part B requires you to write a short essay on one of three proposed topics.
Choose only one of the three proposed topics for your essay in Part B.
The total value of Part B is 25%.

6. Please write legibly on every second line in the answer booklets, in complete
sentences rather than in point form. State clearly any factual assumptions
necessary to the formulation of your answer(s). Cite authority as
appropriate.

7. Do not turn this page or begin the examination until instructed to do so by the
invigilator(s). At the end of the examination, you must stop writing
immediately upon been told to do so by the invigilator(s). If you do not, the
two final pages of writing in your answer booklet will be neither read nor
graded by the examiner.
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PART A (Total of 75%, 90 minutes) (Recommended reading and reflection time: 15 minutes)

Alonor is a wealthy, developed state with a long history of democratic governance and free
market economic activity. Its immediate neighbour to the east, Bulvinia, is a developing state which
until 1988 had a single-party system of governance and a centrally planned economy. In 1988,
Bulvinia's "old guard" government was overthrown following a popular uprising, its constitution
rewritten so as to embrace democratic and free market principles, and a new government duly elected
pursuant to the new constitution. Since then, the foreign policy of Bulvinia's new government has
been to pursue greater international trade and cooperation with other states, particularly its
neighbours. Domestically, Bulvinia's new government has had two priorities: first, stabilizing the
country's economy; and second, defusing centuries-old tensions between its two main ethnic groups,
the numerically superior Corginians (largely resident in the eastern portion of the country) and the
minority Dypths (concentrated for the most part in the western portion of the country). Those ethnic
tensions had been effectively if brutally contained by Bulvinia's former government, but such
containment had allowed the problem to fester. The challenge faced by Bulvinia's new government,
therefore, has been to contain, by democratic means, the forces of division and to unite Bulvinia's
peoples for their greater, common good. In the first few years following the uprising of 1988,
Bulvinia's new government was relatively successful in doing so.

In 1994, Alonor approached Bulvinia with a proposal for the joint development of a canal
system that would permit ocean-going vessels to pass back and forth, through the territory of one or
both states, between the Xhilirating Sea (lying to the north of Alonor and Bulvinia) and the Yawning
Ocean (lying to the south of Alonor and Bulvinia) (see map below). Such a canal system would
provide a convenient and expeditious alternative route for international shipping, as the only routes
currently available between the Xhilirating Sea and the Yawning Ocean require navigation, either
east or west, around the entire continental landmass upon which Alonor and Bulvinia are situated, a
trip of several thousand nautical miles. Of course, vessels wishing to use the canal would be charged
a (sizable) fee for the convenience.

Xhilirating Sea

Alonor
Agreed canal course

Alonor-Bulvinia border
Bulvinia
N

Yawning Ocean
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After conducting a number of feasibility studies and environmental impact assessments,

Alonor and Bulvinia concluded and brought into force a treaty in 1996 (the "Treaty") agreeing upon
the joint establishment of the canal system. In the Treaty, Alonor agreed, given its ready access to
capital, technology and engineering expertise, to design and build the canal system at its expense. In
exchange, the canal system would be situated entirely within the territory of Bulvinia, slightly to the
east of Bulvinia's border with Alonor, along a course identified by the feasibility studies as the most
favourable for a canal. Alonor also agreed to assume the full costs of operating and maintaining the
canal system for the first 10 years of its operation. Thereafter, Alonor and Bulvinia would share the
costs of operating and maintaining the canal system equally. However, Alonor and Bulvinia would
share the net revenues from the canal system equally from the beginning of its operation. The Treaty
provided for a review of its cost and profit sharing provisions following 30 years of operation.

While the Treaty provided that construction of the canal would begin in 1997 and be
completed by 2007, in fact Alonor was unable to begin construction until 1998. This delay was due
to the initial refusal of Alonor's parliament to approve the large expenditures required for the project.
This impasse was only resolved when Alonor's government secured, in early 1998, greater private
sector participation in the financing of the canal project.

Throughout the negotiation of the Treaty, tensions between Bulvinia's Dypth and Corginian
populations had been growing. There had been accusations by Dypth leaders that while the
environmental and other burdens of developing the canal system would fall entirely on fertile lands
owned by Dypth farmers in Bulvinia's west, the revenues generated would be enjoyed by all of
Bulvinia's residents, including the mainly Corginian residents of the east. These tensions escalated
sharply when the conclusion of the Treaty was announced by the Bulvinian government. Leaders of
Bulvinia's Dypth community pointed out that, since Alonor was to build the canal, virtually none of
the economic activity to be generated by the construction of the canal system would be enjoyed by
the local, mainly Dypth, population. By the time construction actually began in 1998, tensions had
reached the boiling point. Notwithstanding efforts by the Bulvinian government to reassure its
ethnic Dypth population that its concerns were misplaced, it became apparent by early 1999 that the
situation had become dangerously unstable and that there was a real risk of civil war. Bulvinia's
government accordingly ordered all work on the canal suspended. Alonor, while protesting that this
suspension was a breach of the Treaty, complied with Bulvinia's request that it remove all equipment
and personnel from Bulvinian territory.

In the ensuing months a national plebiscite was held in which a clear majority of Bulvinia's
population, of both ethnic groups, decided that Bulvinia should separate into two new states,
Dyptheria in the west and Corgiland in the east. On February 1, 2000, an agreement was therefore
concluded, between the leaders of the future Dyptheria and Corgiland, providing that separation
would occur on January 1, 2001; agreeing upon a division of the territory and a common border
between the two new states; providing that Corgiland would retain Bulvinia's seat at the United
Nations; and agreeing that Dyptheria would succeed to any remaining rights or obligations of
Bulvinia arising out of the Treaty (given that the agreed course of the canal fell entirely within its
territory). The new states of Dyptheria and Corgiland duly came into being on January 1, 2001, and
Dyptheria was admitted as a new member of the United Nations on January 15, 2001.
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On January 31, 2001, the Dyptherian government sent a diplomatic note to the government of
Alonor in which it indicated that it did not consider Dyptheria to be a party to or bound by the
Treaty. In any event, the note continued, the Dyptherian government was immediately terminating
any obligations it might have pursuant to the Treaty, in part due to Alonor's own breach of the terms
of the Treaty, and in part on the basis that continued performance of the treaty would jeopardize
Dyptheria's essential environmental, economic and national security interests.

Both Alonor and Bulvinia became members of the United Nations in 1945. Alonor became a
party to the Vienna Convention on the Law of Treaties in 1972, as did Bulvinia in 1978. Alonor
became a party to the Vienna Convention on the Succession of States in Respect of Treaties in 1980,
as did Bulvinia in 1985. None of Alonor, Bulvinia, Corgiland or Dyptheria has taken any other
relevant treaty action.

1. You are a lawyer in Alonor's Foreign Office. Prepare a memorandum addressing the
following questions. Identify clearly the source of the applicable rules of international law.

(a) Immediately prior to January 31, 2001, is Dyptheria a party to or bound by the
Treaty? (20%, 20 minutes)

(b) Assuming the answer to question (a) is "yes", is Dyptheria's purported termination of
the Treaty, or its obligations thereunder, legal? (15%, 15 minutes)

(c) Assuming the answer to question (a) is "yes" and to question (b) is "no", describe the
remedies that may be available to Alonor in international law, including a brief outline of the
procedures required to obtain such remedies. (15%, 15 minutes)

2. Erstwhile Excavating is a contractor incorporated in Alonor, where it maintains its head

office. In 1998 it was one of the companies contracted by Alonor to provide excavation services for
the canal project. The total value of that contract over 10 years was to be US $200 million. Before
work on the canal was halted by Bulvinia in early 1999, work worth US $15 million had already
been completed by Erstwhile, for which it has received payment from the government of Alonor.
However, the government of Alonor has refused to compensate Erstwhile for the loss of the
remainder of the contract, which it attributes to Dyptheria's refusal to complete the project. The
domestic laws of Alonor prevent Erstwhile from suing the government of Alonor for the lost value of
the balance of the contract. You are a lawyer in Erstwhile's legal services division.

(a) Erstwhile wishes to sue Dyptheria for inducing a breach of Erstwhile's contract with
Alonor, and to recover the lost value of the contract from Dyptheria, in the Alonorian courts.
Advise Erstwhile of any international legal impediments to such proceedings. Assume that
Alonor's constitutional law (only) is in all material respects identical to that of Canada. (15%,
15 minutes)

(b) What other procedure in international law could provide Erstwhile with a potential
remedy against Dyptheria? What are the requirements for invoking that procedure? (10%, 10
minutes)
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PART B (25%, 30 minutes)

Write a short essay on one of topics 1, 2 or 3 below. Your essay should be supported by appropriate
references to specific subject-matter, examples and authority covered in the course. Answers that do
not directly address the chosen essay topic will be penalized.

1. Critically assess the following view of the strengths and weaknesses of international law,
using 20th century developments in the international law of the sea, international human
rights law, or both, to support your arguments:

Contemporary international law reflects the nature of the changing world

because it must be responsive to that evolving reality. Flexibility therefore
remains one of international law's chief strengths. Even so, ironically, it is
sometimes blamed for fostering one of the law's greatest weaknesses: namely,
the lack of a centralized, formal structure for codifying international norms,
an omission that invites distortions in legal interpretation as well as self-
serving policy positions.
-C. Joyner, "The Reality and
Relevance of International
Law in the 21st Century"

2. Two Canadian legal academics have recently mused that "Canadian courts seem to be
embracing international law, employing fulsome words of endearment, but the embrace
remains decidedly hesitant and the affair is far from consummated". Evaluate the
appropriateness of the current relationship between domestic and international law in
Canada.

3. If you had the power to change any single rule or principle of international law in order to
enhance international law's effectiveness, what rule or principle would you change, how
would you change it, and why?

END OF THE EXAMINATION