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Jessup 2027 Problem Panel from International Law Weekend 2026 in New York City, 23 October 2026 — Transcript

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0:00Hello, again. My name is Roxana Nazari,
0:01and I'm the Deputy Executive Director of
0:03the International Law Students
0:04Association, and it's my great pleasure
0:06to welcome you all today to today's
0:08Jessup Experts Panel.
0:10We have 205 [clears throat] people
0:12following us on Zoom,
0:14as well as some people here in the room.
0:17So, I would like our four experts, who I
0:21will also just mention right now, none
0:24of the people on the panel are the
0:26problem author.
0:27>> [snorts]
0:27>> So, you will not be getting any insights
0:30from a problem author today. The problem
0:31author or authors will be revealed only
0:34in April. However, we do have four
0:36esteemed Jessup experts here to to run
0:40through some of the questions presented
0:43by this year's problem. So, we're going
0:45to go in order, and I'd like each person
0:47just to introduce themselves very
0:49briefly,
0:51and the topic that they're going to be
0:52addressing very briefly as well, and
0:54then I will open it up to questions both
0:56here in the room and to those following
0:58along on Zoom. So, first, dealing with
1:01QP1, we have Ben. Would you like to
1:04start?
1:05>> Hi everyone. Thank you for coming. My
1:08name is Ben.
1:10I work at the International Court of
1:12Justice. I'm a special assistant of the
1:14president of the court,
1:16and I will be dealing with questions
1:18regarding the first pleading.
1:27>> Hi everyone. I'm Beatrice Walton, and
1:29I'm an associate at Debevoise & Plimpton
1:32here in New York, where I practice in
1:34the International Dispute Resolution and
1:37Public International Law groups.
1:39And I'm also a visiting lecturer in law
1:42at Yale Law School, and I'm going to be
1:44addressing the second pleading.
1:46>> Hi, my name is Asaf Lubin. I'm a
1:48professor of law at Indiana University
1:50Maurer School of Law. I've been on the
1:52Jessup board for many years, helping
1:55draft the Jessup, but as was said, not
1:57involved in any way and that document
1:59in the specific document of the
2:01department
2:02other than that capacity. And similarly,
2:04I should also say that none of us is
2:06involved in the process of generating
2:08the bench memorandum, which is where the
2:12answers lie. And so, please take
2:14everything we say based on our
2:16understanding of the content, not based
2:18on the truth of what you're looking to
2:20provide
2:22later in this end of the year.
2:24>> I sorry, I got to advise that these
2:26microphones there are not transmitting
2:29the audio very loudly.
2:31They said mine is good, but those are
2:33not. I don't know if it's there's a way
2:34to turn the volume up on the ones there
2:36at the desk.
2:36>> Or we could come up here.
2:37>> Yeah,
2:38we can speak from your microphone if
2:40that would help.
2:40>> Okay.
2:42Um
2:43Or do you want to just try speaking
2:44closer to your microphone to start?
2:46>> Is that better?
2:49Hello.
2:52No, they said that's not
2:53>> [laughter]
2:54>> Honey.
2:56>> We can talk to those mics.
2:57>> Okay.
2:57>> Maybe we should start again from the
2:59start.
3:00Great, cuz they couldn't hear us.
3:02>> I think that as we go, let's just as we
3:04go to talk about our issue, we'll
3:06introduce ourselves.
3:06>> Okay, that sounds good.
3:07>> So, Ben.
3:08>> Okay.
3:10Ben.
3:10>> Ah, great. Okay.
3:13Um hi, my name is Ben. I work at the
3:15International Court of Justice
3:17where I serve as the special assistant
3:19to the president of the court and I will
3:21be dealing with questions regarding
3:23pleading one. Thank you.
3:25>> No, and then and then
3:26>> Oh, okay.
3:27So, now I welcome questions on pleading
3:29one.
3:30>> Oh, no. Say say a few words and general
3:33remarks.
3:33>> Oh, right. Sorry. Okay.
3:35>> [laughter]
3:35>> Great. Thank you.
3:36>> We're very organized.
3:37>> Okay. No, no, no, no. That's good. Thank
3:39you for reminding me of that.
3:41Okay, great. So,
3:44pleading one deals with questions of the
3:46court's jurisdiction
3:48and
3:49in basically two facets, right? And I'm
3:51not going to go too much into detail to
3:53avoid, you know, giving any answers.
3:55One of them concerns the jurisdiction um
3:59with regard to whether the precondition
4:02of negotiation established in the treaty
4:04has been satisfied.
4:06And there, of course, it is important to
4:08engage with the long jurisprudence of
4:09the court regarding the precondition,
4:12which the court has mostly mostly
4:14dealt with in the context of the
4:16convention on the elimination of all
4:18forms of racial discrimination. Uh most
4:20lately in its judgment between Armenia
4:23and Azerbaijan. Uh so, that's the first
4:25limb of
4:27uh of the of QP1. Uh and then the second
4:30limb of QP1 concerns the court's
4:33jurisdiction with respect to
4:34counterclaims.
4:36Um and here it is interesting because
4:38the treaty itself uh incorporates a
4:42requirement with respect to
4:43counterclaims regarding the direct
4:45connection that is needed between the
4:48claims filed by the applicant and uh the
4:50counterclaims filed by the respondent.
4:53Um and of course, the rule contained in
4:55the treaty is mirrored in Article 80 of
4:57the rules of court, which established
4:59the requirements for counterclaims to be
5:02considered admissible by the
5:04Uh and here the court has also a lot of
5:06jurisprudence that you can look into,
5:08but the latest case is the
5:10Ukraine-Russia case in which Russia
5:12filed counterclaims against Ukraine. Um
5:16so, pleading one has the benefit that it
5:18is rather structured in the sense that
5:20you have to deal with very two
5:22uh specific questions, either
5:24negotiations on or counterclaims.
5:27Uh and of course, that it also has the
5:29benefit that you can rely on the
5:30jurisprudence of the court for that that
5:32aspect. Now, one very small point, and
5:35with this I'm done, um is that when you
5:38consider the negotiation precondition,
5:41unlike the jurisprudence of the court,
5:43which is rather straightforward in terms
5:46of evaluating the exchanges between the
5:48parties, here there are substantive
5:51issues that might implicate your the way
5:53in which the court should interpret the
5:55negotiation precondition. So, for
5:57example, if you look at the Russia the
5:59Georgia-Russia case or if you look at
6:01the Armenia-Azerbaijan case,
6:03um you will see that the court is
6:05basically evaluating a series of
6:07exchanges between the applicant and the
6:08respondent to determine whether the
6:10precondition of negotiation is
6:12satisfied. But, here you have the
6:14additional thing that you need to
6:16consider how substantive rules of
6:18international law, and of course I won't
6:20identify them not to give too many
6:22answers, but you have to think about how
6:24substantive rules of international law
6:27might or might not have an impact on the
6:30assessment of the negotiation
6:31precondition, right? And this is, I
6:33think, the novelty that this problem
6:35introduces with respect to how you
6:38should understand the negotiation
6:39requirement um under the treaty. Thank
6:42you.
6:49>> Hi Hi, everyone. So, I'm Beatrice, and
6:52as I said earlier, I'm an associate at
6:53Debevoise & Plimpton here in New York,
6:55where I practice in international
6:57dispute resolution and public
6:58international law, and I'm also a
7:00visiting lecturer in law at Yale Law
7:02School.
7:03I'm talking on the second question,
7:05which I find to be just a really
7:07fascinating uh twist of both old and uh
7:10very new issues in international law,
7:12and so I think we're going to have a lot
7:13of fun with it this year.
7:15So, the focus of question two is on
7:17whether Rendor's sanctions of Castell
7:20Group, which affected Castell Group's
7:22investment in Castell Drywall, uh
7:25violate Article 7 of Cobra.
7:28Um so, just at the outset, uh a word on
7:30investment law in in uh in the Jessup.
7:33And, you know, so this topic comes up
7:35from time to time, but it's not
7:37necessarily,
7:38you know, the most frequent. And so, So,
7:40know a lot of students will be new
7:42potentially, to this area. And so, my
7:43advice here, just speaking personally,
7:45would be I think the the basic materials
7:47do a very good job of leading you to the
7:49the key issues. You know, you can
7:51There's many, many topics and issues in
7:53investment law, but I think the the
7:54problem in the materials do a good job
7:56of keeping you focused on the core
7:59substance. Uh So, so what is the core
8:01substance? I'll outline a couple points
8:04for you now, and we'll come back in
8:06questions.
8:07So, the first question is, of course,
8:09whether or not there was an
8:11expropriation. The question refers to
8:13Article 7. Article 7 is, of course, a
8:15provision on expropriation. So, this
8:17first question will be of no surprise to
8:19anyone.
8:21Uh
8:21So, a little background on international
8:24law and expropriation. So, in the past,
8:26historically,
8:28uh it was very easy to spot
8:30expropriations. Direct taking, seizures,
8:34transfers of formal title, that kind of
8:35thing.
8:37Uh But today, in contemporary
8:38international law,
8:40uh it's more common for expropriations
8:42to be of the indirect character.
8:44So, that's the first question you're
8:45going to want to grapple with is what
8:47what It what type of taking, if any,
8:50uh took place here.
8:52Uh So, now I I told you a little bit
8:54about, okay, how do we spot an a direct
8:56expropriation, but
8:58you're going to have to, of course,
8:59grapple with Well, how do we spot an
9:01indirect one?
9:03And naturally, it wouldn't be a good
9:04test of problem if this were an easy
9:06question with easy answers that you
9:09could deploy
9:11uh just, you know, equally in every
9:12case. So, you're going to have to
9:14grapple with
9:15uh many case-specific factors. You'll
9:18find, as you do your research, there are
9:19a lot of different potential factors
9:22that could come into play, different
9:23different distillations of of the key
9:26requirement.
9:27I would just suggest to you to, you
9:30know, orient yourself around potentially
9:32this this idea of was the deprivation
9:35itself uh significant enough or
9:37substantial enough.
9:39So, that's that's the first aspect. But,
9:41of course, in international law
9:44the issue of whether an expropriation
9:46occurred doesn't end the question
9:49because international law doesn't
9:50actually outlaw expropriations. It
9:53regulates them in a sense. So, it's
9:56possible that the expropriate, even if
9:58there was an expropriation here, it
10:00could nonetheless be lawful.
10:02So, article 7 refers to various criteria
10:06that if met would mean that actually the
10:09expropriation was permissible.
10:12Um
10:14So,
10:15that all seems straightforward enough, I
10:18think, if you look to the text of
10:19article 7. But, I'll just add here an
10:22asterisk, which you'll
10:24want to be aware of as you read through
10:26the basic materials, which concerns the
10:28notion of police powers or public
10:31regulatory takings. So, this idea that,
10:34notwithstanding everything I just said,
10:36there are some regulatory actions which
10:39are so central, perhaps, to the
10:43the what states do and and their
10:45regulatory authority that they are not
10:48um compensable. So, they are, in a way,
10:50in a
10:51a carve out. They're not even an
10:53expropriation at all. So, that's
10:54something you're going to want to bear
10:56in mind bear in mind as you
10:58are doing your research.
11:01Um
11:03So, then,
11:04you know, I'm I'm not going to suggest
11:06to you the various factors, but there
11:07are many you can bring to bear on trying
11:10to determine,
11:12you know, do the state's regulatory
11:14police powers apply here or or is this
11:18uh
11:19a type of regulatory taking that needs
11:21to meet the criteria set out in article
11:247?
11:25Um for example, were the measures, the
11:28sanctions here discriminatory?
11:30Were they within
11:32Were Were
11:33up the general welfare of the state?
11:35Whose general welfare? Foreign,
11:37domestic? Many, many areas you can you
11:40can go with this.
11:41Were the measures proportionate?
11:44Etcetera, etcetera.
11:46So,
11:48the final third question, third aspect
11:51of this problem comes to this issue of
11:54whether or not even if there was an
11:56expropriation,
11:57whether or not uh
12:00whether or not the wrongfulness of that
12:02expropriation could nonetheless be
12:04precluded under state responsibility.
12:07So, here
12:10question you'll want to ask yourself is
12:11well, why is Renco taking these
12:13sanctions in the first place? What is
12:15its reasoning for doing so? So, there's
12:18a connection here with the fourth
12:20question
12:21that you'll want to bear in mind.
12:24And then to not not get into the details
12:26too much, but you'll also see some
12:28interesting questions raised in the
12:30basic materials about can
12:32countermeasures even apply in this area
12:34of investment law? How does our treaty
12:37compare to other treaties that deal with
12:40investment law?
12:41We don't know a whole lot about Cobra,
12:43but maybe we can make a comparison.
12:46And then you'll see that the cases
12:48address this question of you know, who
12:50really has the rights under this treaty
12:53that these the the right to be you know,
12:55not not expropriated. Does the state
12:56hold this right? Does Castle Group or
12:59Castle Drywall or you know, who who who
13:02really holds on to this?
13:04So, I'll stop there, but
13:06I
13:07my praise to the author and the
13:09committee and
13:11students for making this interesting
13:12question come to life this year.
13:20>> Hi, my name is Asaf Lubin. I'm a
13:22professor of law at Indiana University
13:24Maurer School of Law.
13:26And
13:27one thing I said earlier that I'll just
13:29want to repeat for everyone in the Zoom
13:32land is that none of the people on this
13:34panel are involved in any way in the
13:36drafting of the bench [clears throat]
13:37memorandum, which is where the answers
13:40for this year's problem sits. And so,
13:42when we speak and share some of our
13:44thoughts and opinions about this year's
13:45problem, it's truly because we think it,
13:48not because we know anything about what
13:50the answers are. And so, you are more
13:53than entitled to object to what we're
13:55saying here today and take different
13:57approaches and arguments than the ones
14:00we will put forward to you. But, I'm
14:02here to talk to you about the third
14:03pleading. And Beatrice said that the
14:06expropriation question is not as common
14:09in Jessup history, well, maritime law is
14:12very common in Jessup history, so is the
14:15law of sovereignty. And this year's
14:17problem brings both of those two things
14:19together. And really, what this year's
14:21problem is about in some respects is
14:23just a treaty interpretation question.
14:25After all, the Schwayble positions
14:28itself 12.5 nautical miles out of the
14:33shores of Astoria and then sends these
14:36cutters up to 6.5 nautical miles from
14:39that shore to conduct those
14:42maritime operations. And so, we have a
14:45treaty, a treaty that is binding on the
14:47states called the United Nations
14:49Convention on the Law of the Sea, and it
14:51might set certain rules in both of those
14:54zones. Both in the 12 nautical miles of
14:57well established by the state's
14:59territorial seas
15:01and in these outside zone, the
15:04contiguous zone, to the extent that
15:07Astoria ever
15:09acknowledge the existence of a
15:11contiguous zone, something we you may
15:14want to think about.
15:16And the law on those are set out
15:18predominantly in articles 19 and 33 of
15:21UNCLOS. So, article 19 deals with what
15:23constitutes innocent passage. And we can
15:26ask both the question of whether or not
15:28the Schwebel or the cutters are
15:31engaging in passage and whether or not
15:33that passage is innocent. Particularly,
15:36whether they're involved in activities
15:38that relate to
15:39immigration or
15:41immigration with an E or immigration
15:43with an I. So, one is about exiting, one
15:46is about entering.
15:48And how should the word immigration with
15:51an I that appears in UNCLOS might be
15:53relevant to people trying to leave
15:56Astoria rather than coming into Astoria.
16:00And those would be interesting question
16:01to apply textually.
16:05But to complicate matter even further,
16:07obviously, Rando is engaging in these
16:09activities for certain humanitarian
16:12reasons. And so, article 99 of the UN
16:16Convention of the Law of the Sea set
16:18certain obligations with regards to
16:20rendering aid or assistance in certain
16:22circumstances
16:24by maritime vessels who encounter people
16:27in distress. And of course, the question
16:29is are they encountering them in
16:33rather than inviting them to come? And
16:36how should we conceptualize the nature
16:39of the activities in that regard?
16:41>> [snorts]
16:41>> Now, all of what I've done so far is
16:43just to look at the text of UNCLOS. And
16:45of course, as you know from the Vienna
16:47Convention Law of Treaties in
16:48interpreting the text, we look to the
16:50ordinary meaning, object and purpose. We
16:52look to subsequent state practice. This
16:55latter part invites us to conceptualize
16:58what are states doing since the adoption
17:01of UNCLOS in 1982, including what is the
17:05customary rules relating to the
17:07engagement of humanitarian activities
17:09both at sea and not at sea. And then the
17:12question would be is the sea lex
17:14specialis? So, can we apply general
17:16rules about humanitarian missions of
17:18rescue for from the land context or the
17:21air context also for the sea and that
17:24interplay between the customary rules
17:26that apply and the law of the sea law
17:27that apply might be of relevant
17:29analysis. But of course in the age of
17:32mass immigration and including
17:34immigration in the context of crisis not
17:36different than the one we're dealing
17:38with in this year's question which
17:40pleading four will bring into the
17:42forefront, there is a lot of analysis
17:45worth to be had about what should the
17:48state's obligations be when they
17:50encounter a vessel vessels capsized in
17:54the ocean and that includes not just
17:56renderers obligations but also Astoria
17:59because Astoria itself says, "Well, I
18:02once you choose to leave in violation of
18:04my own laws, I don't no longer care for
18:07you and you are lost souls and
18:09Godspeed." And so in that respect is
18:12Astoria violating law which is of course
18:14not part of the pleading. The pleading
18:16doesn't ask of Astoria's violations but
18:19we might ask about how Astoria's
18:21violations might shape the
18:22justifications for renderers response
18:25which is very much part of this year's
18:27pleading. And so just a couple ideas of
18:31resources and thoughts in that regard
18:33and with that I will end.
18:35There will be parallel treaties that
18:37deal with rescue
18:39that might help shape our customary
18:41understanding
18:42the international convention on maritime
18:44search and rescue and the international
18:46convention for the safety of life at
18:48sea. That might help shape your some of
18:50your thinking about the scope of
18:52applications between the parties.
18:55There is also
18:56um
18:58our CWA the articles of state
18:59responsibility for international
19:00wrongful acts which deals with
19:02situations of distress when people are
19:05put under your under your entrusted to
19:07you and might suffer death or injury in
19:10some way whether or not there's
19:12obligations there that could justify
19:15precluding the wrongfulness of what is
19:17otherwise a territorial sovereignty
19:19violation.
19:20And of course, there's the whole
19:22counter-measures issue, which we've
19:24already discussed in pleading two, but
19:25might reappear to in pleading three and
19:28invite further analysis of
19:31wrongfulness in the circumstances.
19:33That's at the outset I know we'll be
19:36able to come back through questions and
19:38answers to some of this.
19:43>> I'll just remind everyone that we are
19:44recording this ourselves and the
19:46recording will be made available on our
19:47YouTube channel later.
19:53Hi everyone. Thank you so much. Um
19:56I'm Keela Ratnam Krishnan. I'm a
19:58international human rights lawyer,
19:59gender justice lawyer, and then amongst
20:02one of my roles, I'm a legal advisor to
20:03the End Gender Apartheid Campaign, which
20:05is why I'm going to be speaking about
20:07question four
20:09on it. And this is my first interaction
20:11with anything Jessup related. So,
20:13forgive me if I'm both not helpful
20:16enough or too helpful. I'm going to do
20:18my best to to hit the right balance, but
20:20very happy to to kind of answer any
20:22questions. So, I might start by just
20:25saying that as you look at
20:28the core questions that that this that
20:30this really evokes, I'm going to welcome
20:33you all to join the work that feminist
20:35lawyers have been doing in the space of
20:37international law for decades, which is
20:39to read gender into so-called neutral
20:43norms and laws. That is the task that is
20:46really being put in front of you. And
20:49so, there are a lot of spaces where on
20:51these other issues, you may have
20:54reference points from the jurisprudence
20:55of the ICJ, you may have jurisprudence
20:58elsewhere. Here, you're going to be
21:00looking at methodology and process
21:03rather than solutions or answers that
21:06are clearly in places that I will not
21:08necessarily name.
21:09So, I think that's important, right?
21:11Think about what it took in the Akayesu
21:13case to read sexual violence into
21:15genocide. You had to read the idea that
21:18a gendered experience fit a
21:21categorization
21:23of a crime that says nothing about
21:25gender and there's very little in the
21:26travaux. There's very little in the
21:28history that creates this understanding.
21:30So, that's really the inquiry and and
21:32honestly this has been the core of my
21:33work. It's fantastic and really excited
21:37that for all of you at this stage in
21:39your career, you kind of get to get
21:41involved in this type of engagement and
21:44analysis. So, I'll start with kind of
21:47the the two parts of the question,
21:48right? Gender apartheid as customary
21:50international law and the standing
21:52issues that kind of flow from that
21:54question of gender apartheid as
21:56customary international law. So, the the
21:58first thing I would really encourage you
21:59to to kind of sit down and and look at
22:02is
22:04you know, and this is and you can look
22:05at, you know, your analogy here as a
22:07starting point is going to be looking at
22:09the the flow between racial
22:11discrimination and apartheid. Right? So,
22:13how do you get from a space of
22:15understanding perhaps what is more
22:18written in treaty law
22:20um which is gender discrimination and
22:22prohibitions on certain types of gender
22:23discrimination and how does that flow to
22:25a norm of what constitutes apartheid? Um
22:29so, I think that's going to be one of
22:30the the core questions that you really
22:32are going to need to grapple with and
22:34what are the characterizations
22:36that go between the differences, right?
22:38Because legally we do see that there's a
22:39difference between gender discrimination
22:42or racial discrimination, racial
22:43persecution and apartheid. Um and so,
22:46you're going to have to kind of look
22:47into that inquiry and your starting
22:49point is going to be gender
22:50discrimination, right? And then I guess
22:53one of the other questions that that
22:54seems to be coming through this is
22:57because you're not looking specifically
22:59at something that's prohibited in a
23:01written document, you're going to be
23:03looking at the questions that relate to
23:05how customary international law is
23:07formed, and what can actually impede the
23:11formation of customary international
23:12law, or limit the application of a norm
23:15of customary international law to any
23:16particular any particular state, right?
23:19So, those are some of the questions that
23:20are that are being evoked, and I think
23:22the natural next point in that inquiry
23:25is of course, if you can also in looking
23:28at it as a question of customary
23:29international law, actually look at it
23:30as a question of jus cogens, which is
23:32going to help you not only with the
23:33standing issue, but it's also going to
23:35help you in thinking through the
23:37formation of customary international law
23:39and its application to all of the
23:40parties in the context that we're
23:41talking about here today. Um in the
23:44context of jus cogens, I can tell you
23:45that when the ILC did their report,
23:48their non-exhaustive list of jus cogens
23:50norms did not include gender
23:53discrimination.
23:54Um and so, you will have to take a look
23:57at perhaps how the ILC in their work
24:02categorized the formation of
24:04understanding what constitute jus cogens
24:07norms. I would also recommend in this
24:10space taking a look at feminist
24:12critiques of this process, not just of
24:14the ILC, but perhaps going back even
24:17further of understanding the
24:18masculinization
24:20of the concept of jus cogens, and and
24:22perhaps as a hint, look at
24:25feminist critique that may be emanating
24:27from one of the current justices on the
24:30>> ICJ.
24:31>> Um
24:32who may or may not have some things that
24:34may be useful for you to follow follow
24:36the through lines on.
24:38Um and so, they're just just something
24:39to think about. Um and really I think to
24:43to delve into these questions, right?
24:44Because
24:45when you go and look at some of these
24:47core questions, you will see that the
24:49fact that gender discrimination was not
24:51included on those jus cogens list is
24:53actually invoking a lot of the same
24:54questions that you're going to be
24:55grappling with here in this question
24:56around whether gender apartheid is a
24:58norm of customary international law.
25:01So then um just to kind of turn and I
25:03will I'm happy to answer more questions.
25:05Um just to just to kind of in turning to
25:07to standing, so you're going to be
25:09looking at then how does the status of
25:12the norm of gender apartheid actually
25:14then inform whether or not standing
25:16exists in this case, right? Is it
25:17flowing from directly from the the Cobra
25:20treaty or is it flowing from other norms
25:23of international law that can give rise
25:25to standing, whether that's treaty based
25:27or whether that's from the norms of of
25:30customary international law. So those
25:31are some of the questions that that I
25:33would encourage you to kind of sit down
25:36and think about and think about all of
25:38this with a lens that
25:42everything you're going to look at is
25:43gender blind. This is going to require a
25:46little extra work on your part to really
25:49understand it because if you go looking
25:51for the textual sources, you're not
25:53going to find them.
25:55Um and I and I and I don't say I I think
25:57that's actually what makes it kind of
25:58exciting, right? Is and it's not just in
26:00gender, right? In the spaces of gender
26:01that that these types of tools have been
26:03used to interpret these neutral norms of
26:06law, but really it is where it is going
26:09to be tricky is because the answers are
26:11going to look very straightforward and
26:13easy one way or the other based on what
26:15you look like, but it's actually a much
26:17more nuanced methodological analysis
26:19that you're going to have to do. So I'll
26:20stop it there. Thank you.
26:27>> Okay, thank you very much to all the
26:29panelists for that introduction. Is
26:31there anyone here in the room who would
26:34like to get us started with any
26:37questions? And I think I recommend since
26:39these microphones don't seem to be
26:40working well, if you just ask it from
26:42back there, I'll repeat it into the
26:43microphone here so everyone on Zoom can
26:45can hear.
26:46Anyone have a question?
26:49Yes, please.
26:51>> Um
26:51could the panel
26:53their opinion regarding countries'
26:55internal actions as to their status of
26:58being persistent objectors? Not like
27:00their position on international global
27:02scale, but what country does inside
27:04their
27:05territory?
27:06>> Okay, we just had a question about a
27:08persistent objector doctrine. Now, would
27:10anybody like to answer that question?
27:16>> Do you think
27:17>> I think
27:17>> I'm happy to
27:19to get it started. It's This is a It's a
27:22very nuanced question. So, just at the
27:25outset it's important to note that there
27:27may be certain questions flowing from
27:31the fourth pleading specifically
27:33relating to persistent objector status.
27:37And there are particular, obviously the
27:39place you would want to start is with
27:40the ICJ's relevant lineage around what
27:43are the obligations and the requirements
27:45to enjoy persistent objector status. And
27:50in in there,
27:52there's questions about the extent to
27:54which a state, in particular as it
27:56transitions between governments, stays
27:59committed to an obligation and
28:02articulates it at the right opportune
28:05moments to
28:07reaffirm its opposition to a particular
28:10rule.
28:11And remember at the time that it emerges
28:13into custom customary international law,
28:15which is itself a really complex
28:17question. And so,
28:19obviously I'm I'm I'm kind of
28:21second-guessing what exactly you had in
28:23mind in as an argument, but I will just
28:24say that
28:26states internally are not unitary
28:29bodies. They are made of very
28:32various subdivisions. And as someone who
28:35worked for a Ministry of Foreign Affairs
28:37of a state, I can tell you that getting
28:40consensus around the various political
28:42aspects of a state
28:44to reach the possibility to speak
28:47publicly with a position is very hard.
28:50>> [snorts]
28:50>> And because it is so hard, there is
28:53almost a mismatch between
28:55what is
28:56some perceive as a very rigid obligation
28:58to persistently object and what is very
29:01hard sometimes to get in time the
29:04ability to have a delegate out there
29:06who's able to speak. And and there I
29:09think that there is a question there
29:11about about how that norm should evolve
29:13over time and account for the unique
29:15differences politically that states have
29:17in this regard.
29:19I would imagine others have other
29:21thoughts on that.
29:23>> Well, I
29:23this
29:24all the only very brief I would add as a
29:26matter of of um
29:29legal principle is that more than the
29:31act being domestic or non-domestic, the
29:33importance is that the objection
29:35concerns the formation of the rule of
29:37customary international law. So, I think
29:39it is the content of the objection
29:41itself and its relation to the process
29:44of a customary rule formation that
29:45really matters when you're analyzing
29:47whether you are with a figure of
29:49persistent objector.
29:50>> And this reminds me to say another kind
29:53of
29:53caveat, which is
29:55this is recorded and will be on the on
29:57the ILSA website wherever for after the
30:01release of the clarification and
30:02corrections. You should know for
30:05memory's sake that everything we're
30:07saying right now is before the
30:08publications of the clarifications and
30:10corrections. So, to the extent that they
30:12now say another thing about this, we
30:15obviously cannot account for the future.
30:17So, I just want to acknowledge that.
30:22>> Thank you, Essa. That's a very good
30:23reminder to everyone.
30:26Okay, does anybody either in the room or
30:29through Zoom have any have any
30:30questions? Yes, we have another one in
30:32the room.
30:32>> Thank you. I have a question for
30:34Malcolm.
30:35Um you mentioned three mentions in your
30:37one of your discussion. I would like to
30:38ask whether there might be another
30:40another
30:40which is a question on whether SARCO can
30:43represent the state of
30:46Astoria before the court, apart from the
30:48negotiations.
30:51>> Okay, this was a question about SARCO
30:53and whether they can represent Astoria
30:56before the court.
30:58>> Well, I think there is a discussion also
30:59there to to bring to the case.
31:01>> Okay,
31:02thank you.
31:04>> Great, thank you.
31:07So, I just want to repeat as previous
31:10point that of course these are just our
31:11personal views, right? So, so don't take
31:13everything I say here as authoritative
31:15in any way.
31:18So, I think the issue of representation
31:20before the court is a pretty much
31:22settled issue in light of the Gambia
31:23Myanmar proceedings.
31:26I think in the Gambia Myanmar
31:27proceedings, which are currently pending
31:28before the court,
31:31there the issue was raised and the court
31:33clearly determined that it was going to
31:36deal with whoever had effective control
31:38and was representing that state
31:39effectively before the court, period.
31:42>> [clears throat]
31:42>> So, for me there isn't really a standing
31:46issue per se to be discussed here. For
31:48me this is more about how the
31:51non-recognition by the respondent of the
31:55current government has an effect on the
31:57precondition of negotiation. And in that
32:01sense, of course, the non-recognition of
32:04the government may or may not have an
32:06effect on the precondition of
32:08negotiation. And that's why in my
32:10initial intervention I said that here
32:13we're not really only dealing with a
32:15question of whether the negotiations
32:17were at a deadlock or whether they were
32:19futile, which is the more traditional
32:21Georgia v. Russia, Armenia v. Serbia and
32:23cases. But here we have to think about
32:26how substantive obligations of
32:29international law, substantive
32:30obligations of international law, may
32:33perhaps have an effect on how we
32:35interpret the obligation to negotiate.
32:38So, that's how at least I would think of
32:40pleading one and I don't think that in
32:42light of the current cases before the
32:45court,
32:46um the issue of whether a state can
32:48properly appear before the court, right?
32:51Uh is is really that relevant cuz I
32:53think that question is pretty much
32:54settled, at least in my view.
33:00>> Great. Um so, I'm going to take one
33:01question from the Zoom and then we'll
33:03come back to those in the room. So,
33:04somebody on Zoom asks uh on the fourth
33:07issue, in the case of ecocide, we have
33:09seen there is no standalone provision,
33:11but there have been attempts to bring it
33:12under the umbrella of other inhumane
33:14acts. Can a similar attempt be made for
33:17gender apartheid?
33:18And the second part of that question is
33:20uh gender discrimination, sexism, or
33:22gender violence, and gender apartheid
33:24are quite different rights. There must
33:26be some sort of threshold. Any hint as
33:28to how we grapple those?
33:33Thank you. So, um the first part of the
33:35question of other inhumane acts, um
33:38absolutely something to consider and I
33:40will say that we've seen in the past
33:43that other inhumane acts in the context
33:44of criminal proceedings has been used to
33:46bring in gendered harms that are not
33:49enumerated. So, forced preg- uh forced
33:51marriage, for example, has been done as
33:53a matter of other inhumane acts in the
33:56special court for Sierra Leone, in
33:58Cambodia, as well as at the ICC. So,
34:00there's certainly, I think, the factors
34:03on what it takes for something to be
34:05characterized as an other inhumane act
34:06and the way in which it can be brought
34:09under that umbrella is certainly there
34:11and you can look at, I think, a variety
34:13of jurisprudence that may help you
34:15understand the answer to that question.
34:17On the second piece around the question
34:20of the the the continuum, that's that's
34:23where I suggested that perhaps it's
34:25useful to start with the context of
34:28looking at where you have much more
34:30substantial kind of jurisprudence and
34:32history, which is really between racial
34:34discrimination, racial persecution, and
34:37apartheid.
34:38And really to see where those are, I
34:40will also say that perhaps some places
34:43that you could look at is that there is
34:45an active campaign to codify gender
34:47apartheid. There may be materials and
34:49information
34:51that that exists within those materials
34:53that may also help you
34:55understand or make arguments about what
34:57the distinguishing factors between each
35:00of those are. Um and these are also
35:01questions that have been grappled with,
35:03for example, by the International Law
35:04Commission in drafting the draft code of
35:07crimes for the Rome Statute. So they
35:08looked at some of these questions to
35:11make sure that they're not actually
35:12overlapping crimes and what what the
35:14distinctions between these issues are.
35:16So there's definitely quite a few places
35:18where you can go to that kind of help
35:20kind of more clearly delineate what the
35:23the pathway and the distinguishing
35:25aspects of each of those are.
35:30>> Okay. Um you had a question there in the
35:31room. Go ahead.
35:32>> Yes.
35:34Um it's regarding issue one,
35:35jurisdiction.
35:37To follow up on the
35:40negotiation subsection, my question is
35:43whether or not
35:44a potential difference between legal and
35:47political recognition might come into
35:50play when it comes to fulfilling
35:52negotiation requirements.
35:55>> Okay. This question is on QP1, so for
35:58Ben and the difference between legal and
36:00political recognition.
36:04>> I It's great that Roxana repeats the
36:05question cuz it gives you more time to
36:07think.
36:08>> [laughter]
36:10>> Um
36:12Also, it's interesting. I mean, I think
36:14that first of all, there's there's a
36:16question that teams are going to have to
36:18grapple with with what is the effect
36:20under international law of government
36:22recognition as such. And and there is a
36:25strand of the doctrine which provides
36:28that in terms of legal effects, it's
36:31really about recognition of states
36:32rather than recognition of governments
36:34and recognition of governments being
36:36more of an act which carries political
36:38implications than legal ones, right? And
36:41and there's plenty of examples in state
36:42practice by which states have recognized
36:45one government as legitimate, but
36:47nonetheless they continue to celebrate
36:49treaties with, you know, with the that
36:52state which is represented by the
36:54government which that state not
36:55recognize as legitimate. So So I think
36:57there's one question that you should
36:59think about also that in terms of of
37:01government recognition. But I think here
37:04the question, at least in my view, is
37:06not so much to go in-depth into how
37:10government to how international law
37:12applies to government recognition, which
37:13has been a
37:14very recently an issue in in in Jessup
37:17cases. It's also useful to think about
37:19that Jessup is not really keen on
37:21repeating, you know, every 2 years the
37:23topic that it addressed right before. So
37:25that's also something that I would
37:27advise you to keep in mind. So here it's
37:29really more focused about how is the
37:32obligation to negotiate
37:35understood in the context of government
37:37recognition, right? So there So there is
37:39a treaty provision that provides for
37:40negotiation and there is
37:42the it has been interpreted in the
37:44court's jurisprudence as trying to
37:45basically say, "Well, either there is a
37:48dead lock, either they become futile,
37:50whether there was a genuine
37:51negotiation." And the question is how
37:54that has to be interpreted in light of
37:57the fact that here there is an issue of
38:00government recognition and also an issue
38:02of other obligations of non-recognition
38:05arising in connection to the other
38:07pleadings, you know, specifically
38:08pleading four. So when you're thinking
38:10also about the
38:13the prerequisite of negotiation, as I
38:16said before, think about the substantive
38:18rules of international law that apply
38:19not only in terms of international law
38:22in relation to government recognition,
38:24but more broadly other rules of
38:26international law that could be engaged
38:28in other proceedings and how that
38:30concerns also the obligation to
38:32negotiate. Thank you.
38:36>> Sana, you were asked to add transcript.
38:39>> Yeah, I'm not sure how to add that. I
38:40just think it's that I might
38:43>> [snorts]
38:44>> Okay, in the meantime I'll turn to the
38:46next question. We're getting them fast
38:47and furiously on Zoom here, so I'll
38:50see how many we can get through.
38:52We have a general question here. If
38:54international law is unsettled or silent
38:56on one of the just of 2027 issues, how
38:59can counsel distinguish a persuasive
39:01interpretation of existing law from an
39:04argument that effectively seeks to
39:06create new law while remaining credible
39:08before the ICJ?
39:11Anybody want to take a stab at that one?
39:14>> [laughter]
39:16[clears throat]
39:19>> I guess I would
39:20perhaps in my vagueness, I'm not
39:22suggesting
39:23that the opportunity here is to create
39:25new law, but rather it is to
39:28it is to find the pathway to argue that
39:31the existing space of customary
39:33international law does include gender
39:35apartheid, right? You're not trying to
39:36create new law, you're not trying to say
39:39anything and that is the type of work
39:41that courts do. You do make new
39:43arguments on how the law should be
39:46interpreted and here that's exactly I
39:47think what is being asked of the
39:50inquiry. So I didn't mean to say that
39:52just because it's not there in any clear
39:55way that it's not there's not a way to
39:58make that argument in this context and
40:00that is in fact again the thing that's
40:02always happened to actually progress the
40:04law. So there definitely are all of the
40:06tools to do that
40:07and I would argue that you wouldn't be
40:09making law through jurisprudence. You're
40:10arguing that the status of something
40:13already exists as customary
40:14international law, which is what the
40:15court is being asked to judge here.
40:18>> I'm going to add something very short
40:20here from the perspective of the court.
40:23Um,
40:24two things. One, remember that under
40:26Article 38 of the Statute of the Court,
40:28the court resolves disputes on the basis
40:31of the sources of international law. So,
40:32you have to apply existing law. You
40:34cannot argue before the court that
40:36you're creating a rule that doesn't
40:38exist. This is lex lata, right? So, you
40:39have to first remember that. Second is
40:42that when you're dealing with pleading
40:43four, you have to go There it's one
40:46thing to go into the substantive issues,
40:48you know, specific to pleading four, but
40:50you also need to examine and research on
40:53the formation of rules of customary
40:54international law more broadly,
40:56you know,
40:57uh,
40:58in principle. And here I think it's very
41:00useful to consider the works of the
41:02International Law Commission on the
41:03identification of international law by
41:05Special Rapporteur Michael Wood. That's
41:06one thing, you know, which is important
41:08for you to grapple with and understand.
41:10And also, the court recently, a couple
41:12of years ago, issued a decision on a
41:14case between Nicaragua and Colombia,
41:17which concerned the existence of a rule
41:18of customary international law. In that
41:20case, it was about uh, the continental
41:22shelf. Um, but the court there had to
41:25grapple It's one of the few cases where
41:28the court in length grappled with
41:30whether there was a rule of customary
41:32international law. So, when you read the
41:33jurisprudence of the court in the
41:34Nicaragua-Colombia case,
41:36in line with the works of the
41:38International Law Commission on the
41:39identification of customary
41:40international law, you're going to get a
41:42good idea of how the creation of
41:44customary international law works. And I
41:46think that basis is very important to
41:49know before you go into the more
41:51particular issues involving gender
41:53apartheid.
41:55>> I'm just going to add a word here on
41:57this question in the context maybe of
41:59the second pleading, which is just that
42:01the basic materials offer a particular
42:04perspective sometimes on on a given
42:07issue, but there are other cases out
42:09there and often conflicting views among,
42:12for example arbitral awards on a given
42:15subject. So so don't forget that as well
42:17that
42:18you know, you can't just stop with one
42:20given tribunal or one given courts taken
42:23on on an issue.
42:28>> Okay, do we have any other questions in
42:29the room before I turn back to zoom?
42:31Yeah, go ahead.
42:31>> I had a question regarding the
42:33investment so expropriation in this
42:35situation
42:36and my question was
42:38what what what would be position
42:40>> I think this question goes to be
42:41addressed regarding judicial acts being
42:43part of international wrongful act
42:47and how can one try to weave into
42:50judicial acts
42:51in this case into expropriation?
42:55>> Okay, this question goes to QP2 on the
42:58expropriation and about judicial acts
43:01being internationally wrongful acts.
43:05>> Do you have a specific concern in in
43:08mind about the judicial acts or just
43:11>> I have gotten acquainted with some
43:13materials that have stated that judicial
43:15acts might be hard to try to justify or
43:18amounting to internationally wrongful
43:20acts at least as an ultimate
43:23point where act of country becomes
43:26internationally wrongful act in
43:27composite situation where there are
43:29multiple acts
43:30or because it's a judicial act and
43:34>> So
43:35so the so we were just engaging a little
43:37further on this question and the the
43:38question is is is judicial acts and and
43:41state responsibility and I I would go
43:42back to what Professor Luban was just
43:44saying a couple minutes ago about there
43:47being different departments of you know,
43:49interior to a state but nonetheless you
43:51know, there is state responsibility at
43:53the international level. Of course at a
43:55substantive level you'll need to
43:56consider the relevance of court the
43:59court you know, process here the the
44:02entire due process
44:05that was or was not afforded to you
44:07know, to to cast all drywall here.
44:10Um and so I think it's in
44:12the the process taken
44:15is part of that analysis.
44:18Um but I I I I I would defer to my
44:21colleagues further on on anything more
44:22specific as to exactly your your
44:24question, but happy to talk more.
44:28>> I mean, I'll just say uh
44:30it's a it's a complex act. It's not just
44:32a judicial act that is part of the
44:35uh the process by which these sanctions
44:38are designated and issued and reviewed.
44:40And so I think I think Beatrice is right
44:42in kind of mapping out a a more complex
44:44nature of the act and and reviewing it
44:47within the principles set out under the
44:49law of expropriation. That's probably
44:51what I would say.
44:56>> Okay. Um and I think I'll just continue
44:58with the QP2 here. We've heard quite a
45:00few questions um about AI. Um so I'll
45:04just give you maybe one of those. Um
45:07but I had a question about the use of AI
45:09in the sanction process that led to
45:10expropriation. Do you have some insights
45:12for claim B on how this could be used?
45:16>> Great. Uh thanks for the question. So I
45:18think this actually dovetails with what
45:19we were just discussing about about the
45:21relevance of due process. So so how is
45:23due process relevant? To back up to what
45:25I was saying earlier, so on the first
45:27part you're asking yourself was there an
45:28expropriation? And on the second half
45:31you're asking yourself was the
45:33expropriation nonetheless lawful? And
45:35article 7 sets out these various
45:37requirements, one of which was it which
45:39is due process.
45:41Um so AI obviously has has a role to
45:44play there in in in your consideration
45:47of whether or not
45:49uh
45:49there was a sufficient due process, you
45:51know, in in deciding to designate
45:54uh these the particular entities that
45:56were designated here.
45:58Uh so you'll want to look to potentially
46:01human rights law on this issue,
46:04uh other investment law
46:06cases, uh and what have you. But, to
46:08zoom out a little bit, I I just want to
46:10also flag for you, there are many rabbit
46:13holes you can go down in this investment
46:14law question on
46:16uh this the entirety of question two.
46:18And so, you're going to want to think to
46:19yourself,
46:21"Okay, to what end? You know, if I I
46:23make this big argument about due
46:24process, am I going to What am I going
46:26to get out of it? Am I going to be able
46:27to prove the point I need to prove here
46:29overall at a higher level about whether
46:32or not this expropriation was lawful?"
46:34Uh so, you're going to want to be a
46:35little strategic in your use of your
46:38limited words on how how much you devote
46:41to any given topic. Um I would I would
46:43just flag, you know, A A I could see AI
46:46creatively being relevant to other
46:49aspects of the question. For example,
46:52maybe the the issue some larger themes
46:55hovering around, was there
46:56discrimination here, were the were the
46:58measures rational?
47:01You know, uh
47:02how involved was Castle Drywall really
47:04or Castle Group generally with with the
47:06Sarco regime? All of these sorts of
47:08things. So, you'll want to think about
47:10how to deploy your arguments uh on on AI
47:14in a place that's going to give you bang
47:15for your buck, given your limited words,
47:17is what I would say.
47:21>> Okay, we're also getting quite a few
47:23questions on QP4. Um so, I'll read one
47:25of these. If arguing something exists as
47:28customary international law that cannot
47:30easily be tied explicitly to textual
47:33sources or treaties, what are the best
47:35examples or sources of international law
47:37to use in the argument that would be
47:39most persuasive?
47:45>> [laughter]
47:49>> I may rely on my my co-panelists here,
47:52who I think are more in the in the
47:53specific PIL space uh than I am on this,
47:57right? And then And again, there are
47:59plenty of textual references on issues
48:01related to gender, right? So, you can
48:04start with quite a lot of both
48:09textual, you know, textual references as
48:11well as jurisprudence on issues related
48:13to gender, right? It's just this
48:15question of gender apartheid where you
48:17have to do that analytical bridge
48:19between what you have and what you need
48:21to to look to. And then there are
48:24obviously there's there's a very
48:25specific list of the sources of
48:27customary international law.
48:29I think one of my co-panelists also
48:31mentioned the ILC products that may be
48:32very helpful in identifying what those
48:35sources can be. And and really saying,
48:38you know, here are the places that we
48:39can look and here are the spaces that we
48:40can ground our argument in.
48:42>> Yeah, I mean, one one thing I mean, I
48:45agree with everything.
48:46Um,
48:48I think that it's going to be very
48:49important in this case to look for as
48:51much state practice as you can. And I
48:55wouldn't necessarily restrict only to
48:58issues concerning discrimination against
49:00women. So, not only gender issues, but
49:03also look
49:04at racial issues and the concept of
49:06apartheid itself. And when you look at
49:08apartheid, you have the you have the
49:10apartheid convention, you have the Rome
49:12Statute. You can look at how the court
49:15dealt with the question in the racial
49:16context in its in its advisory opinion
49:19on Palestine.
49:21You can look at, you know, the
49:23jurisprudence of the ad hoc
49:25criminal tribunals. So, so I think you
49:28have to a little bit you if you try to
49:30find state practice on gender apartheid
49:33as such, you're going to get nowhere.
49:35So, I think you have to think of gender,
49:36think of apartheid in the racial
49:37context, and then see what bridges you
49:39can draw. And I and I think that there
49:42there is a lot of ICJ jurisprudence on
49:45customary international law as such that
49:47you can rely on by analogy. So, for
49:49example, in the climate change advisory
49:51opinion on the advisory opinion climate
49:53change by the ICJ, there is a lot on how
49:55customary international law forms and
49:58the relationship between treaty law and
49:59customary international law, and you can
50:01use that as analogy to apply it in this
50:03context. So, don't try to over-obsess
50:06about finding the exact state practice
50:08that you need, but think about how the
50:10ICJ operates in principle with respect
50:12to customary international law, and then
50:14see how you can adapt state practice to
50:16that.
50:17>> So, I I just want to connect
50:20Or so, I I The answer lies in the
50:22answers you already received. I'm not
50:23trying to answer the question you got,
50:24but there were other questions that came
50:26up that relate to this question. I just
50:28want to flag some of them. So, one is
50:31the question explicitly asks whether
50:33gender apartheid is customary
50:35international law. It does not ask
50:39whether gender discrimination is
50:41customary international law and did they
50:42violate gender discrimination. And some
50:44people say, "But clearly it's gender
50:46discrimination, so why do I need to?"
50:47Because that's what the pleading asks.
50:49And it's intentional. It's intentional
50:51to focus your analysis on this specific
50:53issue. There's also a political reason
50:55why uh random our country who
50:57prioritizes um a feminist foreign policy
51:00wants to advance in a a first-ever ICJ
51:03statement affirming this very customary
51:06rule. And so, that is you have to follow
51:08the pleading as asked. You also want to
51:10ask yourself, what are the benefits?
51:12What happens once we do conclude that uh
51:16as Sorry, even before that. Even if
51:17gender apartheid is customary
51:19international law, there's of course the
51:20question and is this gender apartheid?
51:23That is to say, even once you
51:24established the existence of its
51:26customary nature, apply it to the facts
51:28and and reach conclusions about whether
51:30or not this rises to that level.
51:32>> [snorts]
51:33>> But then if you do, what are the
51:34consequences of calling something gender
51:37apartheid? And since the whole the the
51:40the elephant in the room was already
51:41mentioned, what does jus cogens do not
51:45just to pleading for, but to all of the
51:48pleadings.
51:50How does it shape your analysis on the
51:52obligations to negotiate? How does it
51:54shape your analysis on the activities
51:57relating to sanctions or the activities
51:59relating to maritime incursions? It
52:01might shape the way you conceptualize
52:03the entirety of your analysis.
52:06>> I do I I want to add one thing on the
52:09last point that Assaf made.
52:11Um
52:12I think it's very important that you
52:14consider what is the difference between
52:16a norm being jus cogens
52:18and an obligation being of an erga omnes
52:21character. This is very important in
52:23terms of the consequences that it
52:25triggers,
52:26uh and also in terms of standing. So so
52:29also think about how these two concepts
52:30are different and what you need in terms
52:34of the different pleadings.
52:39>> Okay, we have a few more questions in
52:40the room. Yes, please.
52:41>> I'll be very quick.
52:43My question is
52:45I'm wondering if there's any treatises
52:47that you would recommend in respect of
52:48question three.
52:50>> Okay, this is a question for Assaf
52:53whether there any specific treatises
52:54he'd recommend with pleading three.
52:56>> So at the outset I want to say that
52:58there there's a basic materials process
53:01involved in Jessup. And so I'm very
53:03careful not to
53:05sidestep what they do in deciding which
53:07treatises to share with the room. And so
53:10I am going to be careful in what I say,
53:11but I do want to say a couple things.
53:12Instead of giving you names of
53:14treatises, I will say obviously want to
53:17look at
53:19you know, UNCLOS is a very complex
53:21document. It was produced over the
53:23course of three different conferences
53:25across multi decades. And so as a result
53:29of that, what is interesting about
53:30UNCLOS is that its legislative history
53:33in American terms or its preparatory
53:35work in international term, that thing
53:38is evolved over time and at times
53:41conflicted.
53:43And so there's a history there that is
53:45worth studying through commentary and
53:47treatises. Um, that is the first thing I
53:49want to flag. The second, something I
53:51didn't mention before, so much of what
53:53the pleading concerns is the right to
53:55life. Uh, that is the right to life of
53:57the individuals involved uh, in alleged
54:00violations of those right to life by
54:02their home state. Um, they're seeking to
54:04free themselves from certain abuses. Uh,
54:08and then the obligations of the aiding
54:11state to protect the right to life. And
54:14so there is a parallel question about
54:15life in there that uh, has thereby
54:18manifested through human rights courts.
54:21Um, we've seen a lot of that coming from
54:22the European Court of Human Rights. And
54:24it would be without naming any one case
54:26specifically, because again, that's what
54:29the basic batches are for. I'll just
54:30like the definitely want to look at the
54:32relevant case law relating to that
54:34specific issue. That was my I'm I'm
54:37sorry, attempt to dodge your question if
54:39that makes
54:39>> [laughter]
54:40>> But otherwise, it's a great question and
54:42there are treatises. That's all I all I
54:43can say.
54:45>> [laughter]
54:47>> Okay. Uh, take one more from Zoom. Um,
54:50we've gotten quite a few questions about
54:52uh, counterclaims. Um, so I'll read one
54:55of these now. Uh, regarding the problem
54:57of counterclaims, to what extent can the
54:59basis is of jurisdiction be different?
55:06>> Um,
55:08Well, I'm not really sure I understand
55:09the question. Um,
55:12but I'll try to explain a little bit
55:14about counterclaims.
55:15Uh,
55:16so so counterclaims are regulated in
55:18Article 80 of the Rules of Court, right?
55:21Uh, and basically there are two
55:23requirements uh, for counterclaims to be
55:26declared admissible. One, there has to
55:28be a jurisdictional link, and second,
55:30there has to be a direct connection.
55:33Um, now what this problem does is that
55:35it imports the direct connection
55:37requirement of
55:39Article 30 of the Rules of Court into
55:42the treaty. Um, so, uh,
55:46I think that you should basically, I
55:48mean, the way I think about it is that
55:49there is a mirror of Article 80 embedded
55:52into the treaty, and therefore you just
55:54need to comply with this sort of newly
55:57created jurisdictional requirement under
55:59the treaty that there be a direct
56:01connection. Now, with respect to
56:04counterclaims, there and and I think
56:06this is where the where the
56:08question becomes interesting in terms of
56:10the direct connection requirement. You
56:12have a strand of ICJ jurisprudence,
56:15which applies a rather, one could say,
56:17formalistic approach to the requirement
56:20of direct connection, right? Um,
56:23and and it basically says, "Well, is the
56:25same treaty being invoked by the
56:26parties? Is the subject matter of the
56:29dispute, uh, originally introduced by
56:31the applicant, you know, the same as the
56:33respondent?" And you look at the facts,
56:35you look at the law, and then you're
56:36satisfied. But there is also a critique
56:38to that approach, and you can see it in
56:40some of the dissenting opinions of
56:42judges saying that you we shouldn't
56:44really apply such a straightforward, or,
56:47you know, formalistic approach to the
56:49direct connection in fact and in law,
56:50but also look beyond at whether the
56:53respondent is trying to enlarge a
56:55dispute which was not originally brought
56:57before the court. I mean, the whole idea
56:59of counterclaims is that the respondent
57:01doesn't really have the chance to
57:03modify, to change the nature of the
57:05dispute, or to actually expand the scope
57:07of the dispute to beyond what was
57:10actually the dispute which the applicant
57:12brought to the case to begin with
57:14through the application. So, I think
57:15these are the considerations that you
57:17need to keep in mind. I wouldn't be so
57:19distracted by the fact that this is, uh,
57:22this appears in the treaty rather than
57:24an application of Article 80 of the rule
57:27of the Rules of Court. So, the way I see
57:28this is basically the treaty has
57:31bilateralized as a jurisdictional
57:33requirement what would normally be under
57:36Article 80 of the rules of court. And
57:38that's why also
57:41there is a sort of weird thing in a way
57:43that the counter claim doesn't have to
57:45comply with the negotiation precondition
57:47that the applicant has to comply with
57:49normally under a normal in a normal
57:51circumstance, right? If this was brought
57:53as a normal counter claim under Article
57:5580 of the rules of court, then obviously
57:57the negotiation precondition would also
57:59need to have required with because if
58:01you look at the judgments of the court,
58:02the court fails first considers
58:04jurisdiction and then considers direct
58:06connection. But here there is sort of
58:09lex specialis, I would say that applies.
58:11So you would have to be guided by the
58:13treaty itself. And I would just take
58:16that as a given and proceed on that
58:18basis rather than trying to wrap
58:20yourself around about how Article 80 of
58:23the rules of court and the treaty
58:24interact with each other cuz that's
58:25going to take you into a very
58:27complicated rabbit hole which I would
58:29absolutely avoid.
58:34>> Uh yes, we have a question in the room
58:36here.
58:36>> Yes.
58:37Also about counterclaims.
58:40Is it possible to bring forth a
58:43counterclaim while
58:45arguing that there shouldn't be an
58:46initial an initial claim?
58:49>> So possible to bring a counterclaim if
58:52there's a
58:53>> If you're arguing that the initial claim
58:54shouldn't be heard.
58:55>> If you're arguing that the initial
58:57counterclaim shouldn't be heard.
58:58>> Um
59:00In the Jessup this year because of the
59:03treaty provision, yes, it is possible.
59:07Do not get confused. This if it wasn't
59:10because the treaty explicitly regulates
59:12this, of course this would fail under
59:14Article 8 of the rules of court. That
59:16was my point previously. I think that
59:18you have to consider that here there is
59:20a bilateral treaty, well, it's a
59:23multilateral treaty but there's a treaty
59:24to which the both uh, states are parties
59:26to and that applies in the present case
59:30as a lex specialis over other more
59:32general rules contained in the statute
59:34of the rules of court. So, do not get
59:36distracted by that and do not try to
59:38import issues that would normally arise
59:40under the normal application of
59:42counterclaims under Article 80, and just
59:44focus on the specific rules contained in
59:47the treaty. And the treaty expressly
59:50allows for that.
59:52>> I'm just going to reinforce that point.
59:53I mean, Ben can correct me if I'm wrong,
59:55but I believe the ICJ statute allows the
59:57parties to negotiate specific rules on
1:00:00specific points. So, in effect, that's
1:00:02how what they've done here in this lex
1:00:04specialis. So, focus on the on the
1:00:06treaty.
1:00:07>> Yeah, I mean
1:00:09I agree. I mean, the the the requirement
1:00:11under Article 80 is that, uh, there has
1:00:14to be jurisdiction to hear the
1:00:15counterclaims. And if the parties
1:00:18decided in the present case that they
1:00:21could still bring the counterclaim even
1:00:23if the applicant was objecting to
1:00:24jurisdiction, and that there was no
1:00:26precondition of negotiation for the
1:00:28counterclaims, then the parties have
1:00:30consented to jurisdiction with respect
1:00:32to counterclaims. So, yeah.
1:00:40>> Okay, from the Zoom, we have a question
1:00:42about QP3, and uh, how should we
1:00:44elaborate the potential relevance of the
1:00:461951 Refugee Convention?
1:00:53>> Um, so, if if you recall back in April
1:00:57[clears throat] when, um, Stephen
1:00:59Schwebel introduced the topics of this
1:01:01year's problem, one of the things he
1:01:02said is,
1:01:04uh, that this year's topic will, uh,
1:01:06concern mass mig- mass migration crisis
1:01:10and the responses of states to it. Um,
1:01:13and so, um,
1:01:15it is unsurprising that as a result,
1:01:17perhaps, of that statement, as well as
1:01:19the discussion in the problem about the
1:01:21EAR program, the EAR expedited
1:01:25something process.
1:01:27The students were rushing to look at
1:01:30Astoria's sorry, Randor's activities in
1:01:35conducting these
1:01:38asylum reviews and authorizing and not
1:01:41authorizing and there's these numbers of
1:01:43women who are approved versus men and
1:01:44children and so on and so forth.
1:01:46The question is very specific. Pleading
1:01:49three deals with maritime incursions in
1:01:51these contexts. To the extent that you
1:01:54want to rely on any argument pertaining
1:01:57to the law on asylees, the law on
1:02:01refugees
1:02:02and the activities involved by Randor it
1:02:05has to be done in connection with the
1:02:07pleading itself. And so
1:02:10it's not inconceivable in my mind that
1:02:12there
1:02:13may be some points to draw on
1:02:15particularly about what motivates the
1:02:18cutters and the Schway Bowl to do what
1:02:21they're doing. What motivates the people
1:02:24who are fleeing to flee [clears throat]
1:02:26and how might that
1:02:29those arguments relate to the innocence
1:02:31of passage? Like
1:02:33>> [clears throat]
1:02:33>> it's not irrelevant. Is it the core of
1:02:37the pleading? I don't think it is the
1:02:38core of the pleading.
1:02:41That is I think how I will address that
1:02:43question.
1:02:43>> [laughter]
1:02:48>> Yes, we have another question in the
1:02:49room here.
1:02:50>> Um so I know countermeasures seem to be
1:02:54relevant in
1:02:57QP2.
1:02:59To what extent would those be relevant
1:03:01in the other questions?
1:03:08>> Well,
1:03:09I I've already alluded to its relevance
1:03:12in QP3 [snorts] and I will say
1:03:14countermeasures as a general rule is a
1:03:17circumstance precluding lawfulness and
1:03:19so
1:03:20and and there is a set of alleged
1:03:23violations by Astoria, all of which
1:03:25could help render on pleadings one
1:03:28through three address some of those
1:03:31including its failure to negotiate and
1:03:34then its
1:03:36decision to issue sanctions and its
1:03:38decision to engage is it in these
1:03:39maritime incursions. Um
1:03:42>> [snorts]
1:03:43>> so all of that I think is true
1:03:45and therefore I think countermeasures
1:03:47can play a role. I think one thing I
1:03:49want to highlight is it's just a just a
1:03:51generality.
1:03:52Um we all recognize that you are limited
1:03:55in both words
1:03:57uh in speech and in writing and uh you
1:04:01one of the benefits of some
1:04:03cross-cutting issues is that you are not
1:04:06expected to then rehash the whole
1:04:08analysis over and over again. So one
1:04:11recommendation I would give you to the
1:04:12extent that you want to bring up an
1:04:14argument you've already brought
1:04:15[clears throat] before is to first
1:04:17introduce it in the scope it deserves in
1:04:20the first part and then cite back to
1:04:22that and limit your analysis just to the
1:04:25additions that this second or third or
1:04:27fourth pleading brings up in that
1:04:29context.
1:04:31>> And and obviously you know it goes
1:04:33without saying that the analysis will
1:04:35need to differ in in in each of the
1:04:37questions and that will take space to
1:04:40Professor Luban was saying.
1:04:42Um and yeah, don't take for a given that
1:04:44counter-measures definitely do apply in
1:04:46question two. I mean they you'll have to
1:04:47you'll have to sort that out.
1:04:49>> That's true.
1:04:54>> Okay, another QP4 question. How much can
1:04:56the right of preservation of culture and
1:04:58religion be used as a response to the
1:05:00gender apartheid allegation?
1:05:09>> Well, in human rights law you have quite
1:05:11a bit around the intersection of the you
1:05:15know the the right of religion as well
1:05:17as how when and how it can be used to
1:05:20impede on the realization of other
1:05:22rights. Um and so I think I would look
1:05:25into where you've actually had these
1:05:27questions. It's questions also that the
1:05:29CEDAW Committee and other committees
1:05:31have grappled with very specifically um
1:05:33because you do often see specifically
1:05:35these questions of religion being
1:05:38invoked to
1:05:40um suppress particularly family rights
1:05:42or other rights in the space of of
1:05:44gender which is very relevant to the
1:05:45fact pattern. And so I would go and take
1:05:48a look at how this issue this specific
1:05:50issue has been grappled with by human
1:05:52rights bodies the the as well as like
1:05:54special rapporteur like the special
1:05:55rapporteur on um oh what is it? Culture?
1:06:00I can't remember the name, but yes,
1:06:01there is a special rapporteur whose
1:06:02whose work has grappled with this. So
1:06:04you have plenty of kind of human rights
1:06:06expertise on this issue. What are the
1:06:08limitations and what are the factors
1:06:10that can be used to justify or not
1:06:12justify? Right? And there's also
1:06:14distinguishing factors in human rights
1:06:16law around what are particular rights
1:06:19that can never be derogated upon
1:06:21regardless. So there's also a space for
1:06:23you to take a look at there to see um
1:06:27what the specific factual issues are at
1:06:29hand and how they actually comport with
1:06:32the justifications.
1:06:38>> Okay, and now we have a question about
1:06:40uh issues four and one and how they
1:06:42relate. Um does the establishment of
1:06:44issue four, the gender apartheid as a
1:06:46use cogens norm, directly affect the
1:06:48argumentation of issue one, the
1:06:50obligation to negotiate? If so, how
1:06:52would this logistically work?
1:06:57How exactly [laughter] would I write my
1:06:58pleading?
1:06:59>> So I will try to answer this without
1:07:03I mean giving I don't want to say how I
1:07:04would do it, right? Uh but I do want to
1:07:07recall that at the beginning I said that
1:07:09you should think about how substantive
1:07:12rules of international law play a role
1:07:16um in determining whether the obli- how
1:07:18to understand the scope of the
1:07:19obligation to negotiate and how to
1:07:21interpret it. Uh so, remember that.
1:07:24Uh and then I also said that it was very
1:07:26important to consider what are the
1:07:27consequences of a norm being jus cogens
1:07:30and what is what are the consequences of
1:07:32considering an obligation to be of an
1:07:34erga omnes character. So, I think these
1:07:36are issues that you could should
1:07:37consider when you are determining the
1:07:39scope of the obligation to negotiate,
1:07:41but I won't say more than that.
1:07:43>> I do want to say something about the
1:07:46logistics in general. And so, obviously,
1:07:49we recognize that to the extent that the
1:07:53the answers to pleading four have
1:07:55implications on pleading one through
1:07:56three, we won't get um there's
1:08:00[clears throat] the rules of Jessup
1:08:01about whether or not you can go in a
1:08:02different order than the order of the
1:08:04pleading, and I'm not afraid of those
1:08:06rules. But, it is general practice that
1:08:08most teams keep with the order of
1:08:10pleadings as they are presented. And so,
1:08:13we recognize that teams that want to go
1:08:14in that order will come to pleading four
1:08:17at the end, and yet to the extent the
1:08:19answer to that question implicates one,
1:08:21what do we do about that logistical
1:08:23question? So, I do want to address that
1:08:24and just that. And the answer is that A,
1:08:28it is very important, and perhaps
1:08:31different than some Jessup other Jessup
1:08:33peers, that those who do pleadings one
1:08:35and two actually learn pleading three
1:08:37and four.
1:08:39Um it's not always the case. They
1:08:41sometimes they are so distinct that you
1:08:42really don't need to know what your
1:08:43partners are doing. This is not that
1:08:46year. You really need to know what your
1:08:49partners are doing. I do think that to
1:08:50some extent it will be fair game for
1:08:52judges to come in and ask in pleading
1:08:54one some questions about gender
1:08:56equality. To some extent, obviously,
1:08:59they understand that they have to focus
1:09:01on the questions at hand. Um
1:09:03in that regard also the the judges might
1:09:05ask you a question like if in pleading
1:09:07four we rule this way, what does it mean
1:09:10for pleading one? If we rule that way,
1:09:12what might it mean for pleading one?
1:09:14[clears throat] And you need to be
1:09:14prepared to come with answers like that
1:09:17and how much of that feeds into your
1:09:19written analysis that is a strategic
1:09:21question for each team to resolve.
1:09:27>> Yes, we have another question over here.
1:09:29>> Just a comment. Um
1:09:32bouncing off of Boss Ops, from a judge's
1:09:34perspective, we're also if there are
1:09:36counterclaims between two and three,
1:09:38that's also fair game. And you'll have
1:09:40to understand how those work together.
1:09:43>> Uh we just had a comment from a the
1:09:45seasoned Justice of the Court that we
1:09:46have with us
1:09:48seated [laughter] in the room here. Um
1:09:50who's mentioning the counterclaims
1:09:52between issues two and three and that
1:09:54all of the oralists will need to be
1:09:55aware um of of any overlap there and be
1:09:59able to handle questions about those um
1:10:02regardless of their of their position as
1:10:04oralists. Does that a fair summary of
1:10:07what you said?
1:10:07>> Yeah, we like to trap people.
1:10:09>> [laughter]
1:10:12>> Okay, um our time is
1:10:14expiring, so I'll just ask if any of the
1:10:17panelists have any final words or
1:10:19summaries or anything they'd like to
1:10:20add.
1:10:23>> Okay, can
1:10:24>> Please.
1:10:24>> Just a
1:10:26One thing that lingers to me in in this
1:10:28in this broader thing. Um
1:10:31listen, the the the um whole question of
1:10:35how to uh strategically analyze this
1:10:38year's problem, I think is more unique
1:10:42than previous years. Um
1:10:44because there are all sorts of ways to
1:10:48um strategically build up an argument
1:10:51this year um that builds on some of the
1:10:55analysis in pleading four um that by
1:10:58design will shape because all that
1:11:00happens in pleadings one, two, and three
1:11:03are responses to a fact, to a reality,
1:11:05political reality that is unfolding in
1:11:07Astoria. And so, there is a dynamic
1:11:10there that I just think invites coaches
1:11:14and teams to reconceptualize
1:11:17what just have a sit-down together and
1:11:19think, "What are our strategic analysis
1:11:22on four? And what are we doing with that
1:11:24on one two, and three in ways that we
1:11:26typically don't have in Jessup." So, I I
1:11:29really wanted to stress that. Again, I'm
1:11:31still stuck on that word logistics. And
1:11:33so,
1:11:34>> [laughter]
1:11:36>> Any other final thoughts? No. Okay,
1:11:39thank you. A very big thank you to all
1:11:41four of our panelists for providing such
1:11:43wonderful [applause] insights. To
1:11:45everyone, thank you so much for all of
1:11:46you who have been joining on Zoom. And I
1:11:48apologize that I wasn't able to get to
1:11:49all the questions. I think we we could
1:11:51have kept the panelists here another
1:11:52couple of hours.
1:11:53But that's all we have time for right
1:11:55now. So, thank you very much. And again,
1:11:57as a reminder, the recording will be
1:11:59available on our YouTube channel.

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