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ICJ LogoI’m back from watching the finals of the Jessup 2008 International Round and want to jot down what I saw and articulate some of the frustration I felt with the finals.

This year, Case Western Reserve University took on the University of New South Wales.

Case Western started the case as Applicant’s, while UNSW were the Respondents. Now Respondents clearly have the harder case this year, but the problem is pretty balanced, and I’m now sure there are some excellent arguments for the Respondent who is properly prepared.

The first Agent of the Applicants was good. it was clear from the outset she was a good speaker, with a smooth, relaxed and composed style. She had some difficulties with questions but was smooth enough that it didn’t matter. She had a great ability to take a question and tie its answer back in to the structure of her submissions, so that she got all her points across without the slightest interruption.

Importantly, for the listener, she had the sound of conviction and force in her voice, which made everything that little bit better. Sadly for the listener, she was the first and last to possess this quality. She did rightly win best speaker, but it shouldn’t have been so clear cut.

The Second Agent of the Applicant was average. He had a weak case and there was more need for advocacy to carry his points. The questioning was probing as the judges warmed up, and he didn’t  rise to the challenge. He was unremarkable but high quality speaking without being convincing.

The first Respondent’s Agent for UNSW was disappointing. He was short, sharp and far too in love with his case to engage the panel. The  silky smooth presentation was there, but it lacked decorum. There was little deference to the bench, an unwillingness to address the judges questions and an inability to spot when the judges handed him opportunities.

By this point all four of us had given it to the Applicant. The Second Agent needed to be special to rescue her team. It had to be that the first agent was the junior of the pair, if UNSW were to win.

The Second Agent for the Respondent was a mixed bag. As Ernest pointed out, she was so smooth that she put you to sleep. It was just devoid of all emphasis, all clear signaling and all sense of importance. It just didn’t feel like the Agent cared about the case. That was fatal.

She was immensely well read, could answer questions on obscure points of the International Criminal Court Statute with ease, but none of these overcame the disadvantages.

Rebuttal and Sur-Rebuttal were unremarkable. Lots of faux agreement, because the teams agreed on issues that the judges had raised, and well might they agree. The issues were tangential taken at their best.

Overall, I was disappointed by the finals. Tim has often said that finals disappoint in any competition. These ones proved him right. The new judges, appointed for their prestige rather than their knowledge of the law or the problem proved unsuitable to the occasion. Teams, cast in the public glare, felt the pressure.

And this final suffered from all those flaws.

Partly the judges were to blame. Inspite of their eminence, their understanding of the field in which the problem was placed, and their years of professional experience, they hadn’t quite tweaked to what it means to be a Jessup judge. The sharp questioning, the insight into the facts and policy, and a real understanding of the issues thrown up by the problem would have made the final round much better. Instead they typified the Common Law passive judge. When one of the judges is the man who prosecuted the case of Nikolic before the ICTY, but still lets sloppy characterisations of it slide by, its uninspiring at its most fundamental level.

It was some beautiful advocacy, if you like slow paced, measured and dull advocacy. Its lack of passion turned it into a background noise, an international law lullaby.

It was absolutely insipid on the law, with points argued that made us laugh out loud that these teams still even barely considered them even mildly viable arguments. And the reasons they are not viable are easily expressed in a four word or five word question. Fundamental questions that would have destroyed these arguments.

I had hopes for so much more.

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11 Comments

    • Jaws
    • Posted April 13, 2008 at 4:07 pm
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    Thanks. That is very enlightening

  1. sounds like you need some real life experience thrown in there. maybe participants should be required to meet real life legal applicants first. but i’m surprised you found the judges uninspiring. or, on second thoughts (after remember the few judges i’ve met!), maybe i’m not so surprised. in the case of the judges, maybe not in fact being a real life judge should be the requirement 😉

    • mtalib
    • Posted April 15, 2008 at 12:37 pm
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    The parties argue on behalf of nation states, so there’s no real sense in which they can meet the parties.

    I’m with you on the “should not be a real life judge” requirement though, or at the very least they should brief the real life judges a lot better to ensure that they are willing to explore the knowledge and the skills of the teams that appear before them, instead of the traditional deference to counsel that exists in most real judicial systems.

    • chaitanya
    • Posted April 23, 2008 at 4:47 pm
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    your blog on jessup 2008 does for an interesting reading…. i was also a competitior in this years jessup, and i to extent agree with your analysis of the finals. …by the way which school were you from

    • mtalib
    • Posted April 23, 2008 at 8:36 pm
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    I’m curious to know to what extent you disagree with my analysis of the finals.

    I represented the University of Hong Kong. How about yourself?

    • chaitanya
    • Posted May 8, 2008 at 11:48 pm
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    Well i am from the Amity law school, INDIA. it was my first time at jessup.
    so how was your jessup experience.
    now that i read back your blog i really cant find anything to disagree with. infact before the finals we had made up our mind to pre order the final jessp DVD. but after watching the finals we kind of gave up on the idea. well yes the finals for all the competitions are the same. the tend to be much more slower, and less interactive than the other rounds. its always like that. i was expecting one of the judges to be from the ICJ they have had a tradition of inviting icj judges in thr previous year. but i have heard ICJ judges are even less interactive…
    anyways … what are your post jessup plans … what about next year .

    • Jessup08
    • Posted August 26, 2008 at 8:52 am
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    I also watched the grand final, but only agree in part with what you said.

    In terms of style, I suspect you subscribe to a different manner of advocacy. The style employed by the applicant was a little muted, but the style employed by the respondent was the quintessential English/Australian style of advocacy — slow, clear, concise and composed. This is to be contrasted with the typical American style, which is generally more passionate and debating-like. Thankfully, neither team subscribed to that sort of (often overbearing) manner of speaking. Also it is to be compared with the extremely fast, babbling style of some European countries.

    As you say, “It was some beautiful advocacy, if you like slow paced, measured and dull advocacy.” Personally I think the English and Australian approach is a more intellectually apposite style, rather than infusing the moot with passion, turning it into a debate. It’s not a debate. It’s legal advocacy. Emotional and fast styles of speaking detract from the rational assessment of the arguments, in my opinion.

    I agree that the respondent junior was “so smooth that she put you to sleep”. Ironically she was so soothing she sort of lulled the judges into not asking enough questions.

    I agree with the comments about the bench. The international law academic was the only one who really knew public international law. That Crane guy was hopeless, clearly he knew nothing. The former prosecutor was knowledgable but only on criminal trials. The standard of questioning was, consequently, pretty terrible.

    You’re right the respondent team wasn’t as willing to follow the judges’ questions. But I think that’s largely because a lot of the questions were irrelevant. If it were me, I would give a short answer and try to steer them back to the decisive points.

    In terms of the substance, I think if you really listen to what is said they were very impressive. The applicant’s mastery of case law was excellent. They thoroughly knew their material. The respondent’s argument on self-defence was probably the best I heard in the entire competition. The applicants barely blinked an eye before giving a perfect response to every question. Both teams had generally good content. Some of the respondent’s arguments on fair trials were laughable, yes. But if you’d read the problem you’d know that the respondent pretty much had no room to move on prayer C. The applicant has a slam dunk on that prayer ground.

    I think you’re probably right about the pressure. It would have been interesting to see both teams in other rounds, where the enormity of the pressure was not so overwhelming. It could have been their worst moot, it could have been their best moot. Who knows? A lot depends on how good a run you have on the day. It’s highly probably that both teams were not performing at their best.

    • mtalib
    • Posted August 26, 2008 at 9:52 pm
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    Hey thanks for the comment.

    I agree with you that advocacy is a question of style and that my criticisms as a result are largely personal. I don’t make any bones about that.

    Even within the tradition of muted, slow and elegant advocacy that characterizes the English tradition globally there remains space for vibrancy. Simple devices like a memorable turn of phrase, a nicely articulated alliteration or simple rhetorical tricks that hammer home a point like repetition all have their place.

    While we idealize the rational judge and the rational argument, which mooters should do, there has to be the realization that a judge is a human being and is reliant on the cues of speech to tell him or her where to pay attention and what is merely preamble on the way to the point.

    I don’t recall one moment where the respondents tried to use a device like that to generate emphasis which would have made their points come home that much better.

    I agree with you that the judges questions for the Respondent were largely irrelevant and off topic. R1 was handed a golden opportunity to advance his case when he proffered a proposition of the law of self defence which the judges accepted. They invited him to address them on the consequences of that proposition. Instead he almost arrogantly told the judges that the proposition, which they had seconds ago accepted, actually needed substantial amounts of proof and was not at all the accepted rule of international law. That was an unbelievable instance of shooting oneself in the foot. He’d been offered a wide open door in which to establish that his version of SD was right and he’d declined by saying that in fact the judges were being rash in accepting his argument. I can still recall the titter that went around the room at the rash and almost contemptuous nature of that reply to the judges.

    In terms of substance, I have to part ways with you. The applicant and respondent were both cringe worthy at various points. The applicants stand out error for me was their argument that the rule male captus bene detentus had been replaced by a new norm which recognized that male captus could not create a just detention. To support this they advanced two authorites – the New Zealand case of R v. Hartley and the English House of Lords decision in Bennett v Horseferry Road Magistrate’s Court and another. They took this as opportunity to state that the rule of male captus had been universally pulled back and a new custom had been formed whereby a bad capture meant that a court could not exercise jurisdiction.

    That was a moment of awe. The sheer audacity in trying to argue that two cases of two common law jurisdictions formed the requisite near universal practice and opinio juris required under North Sea Continental Shelf was….words fail me as to how wrong an argument that was. If you’re going to argue that a well established customary rule has changed, you would need copious amounts of practice to make a convincing statement that the rule has changed. They couldn’t do that because that practice is not there!!!

    Not that the Respondents were blameless in this respect either. If they had known anything about the male captus rule they would have known about the Eichmann decision of the Israeli Supreme Court and the US Fifth District in US v. Alvarez Macchain which held that the male captus rule was well established in international law and therefore both courts were right to exercise jurisdiction over the two respective defendants. US v. Alvarez Macchain is especially useful as the judgments their engage in a survey of a wide range of authorities to establish how well established the male captus rule is in international law.

    I disagree with you that Respondents C was a difficult issue to argue. In fact once you accept the Jessup Compromis is well drafted to leave open a wide variety of angles it became a matter of time and patience to find good arguments for RC. I thought that this issue exposed a rather obvious lack of clear thinking and understanding of the issues by the Respondents rather than the intractability of the issue. Over the preliminaries I heard some fantastic arguments on issue C, that were legally miles ahead of the Respondents case.

    I’m using those two examples because they were so egregiously bad that I remember them four months after watching the finals. They were the worst manifestations of a problem that repeatedly occurred in the arguments of both teams.

    I know this has become an extremely long response, and I hope it will help you understand why I was so harsh on the legal arguments of both sides.

    • Jessup08
    • Posted August 27, 2008 at 5:26 pm
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    Responding to some of your comments.

    R1: I’d disagree with you there. We ordered the DVD and, having just watched it, it is obvious why he responded like that, for a few reasons.

    First, the entire moot was centred around the legal status, in international law, of the right of self-defence against terrorists. The judges basically wanted to skip over the ENTIRE legal debate and argue about the facts. That is utterly absurd — it defeats the whole point of the moot. Anyone can debate over the facts. The facts are what mooters are stuck with. The law is where you are really supposed to shine. So in my view, it was incredibly poor judging for them to have asked to essentially skip the entire argument which formed the meat of the moot and start debating about the facts. It would have essentially meant not talking about the entirity of prayer A.

    It was clearly an awkward situation, and no doubt to those who didn’t understand the nature of the problem, it would have appeared silly. But given the request to skip the most contentious legal issue in the whole moot, I think the respondent did the right thing. I mooted prayer A and B myself, and I completely understand how frustrating and pointless it would have been to skip the legal argument of prayer A.

    Second, as I think the guy said, you can’t really jump straight to applying the law without first understanding the nature of the rule. You first have to understand the scope of the norm before putting the facts under it’s spotlight.

    Substance: Yes, I would agree on the point about the applicant arguing a new customary norm. You really have to do better than give two cases. If they wanted to run that, then they needed far more state practice. I also agree with you about the respondents’ response (although both cases you cite are easily distinguishable).

    But these are only some examples, and I think if you watch the moot again you will find there is not a great deal of weakness in either side’s knowledge or substance.

    Difficulty of prayer C: I disagree here. Some of the facts are pretty much irrefutable breaches of the ICCPR. Others are more arguable, but on the whole, you must admit prayer C was heavily in the applicant’s favour. That isn’t an excuse for not having decent arguments, but it does explain why some of their arguments were somewhat tentative.

    • Guillermo Otálora Lozano
    • Posted April 12, 2009 at 9:00 am
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    Greetings

    I read this blog entry a year ago, having participated in the 2008 Jessup Competition and watched that final. I went back to the Jessup this year, and won the final as a member of the Colombia team.

    I disagree on your general approach in your comments. The whole mooting exercise is about advocating one side of the case, not about unloading all your knowledge of the law before the judges. I’m 100% certain that the members of both teams in those finals knew all those pieces of information you bring up (as well as all other Jessup teams from that year). Of course the applicants knew that the male captus argument was a weak one, but it had to be made nonetheless.

    The applicants a more extreme situation with the 2009 case. The fourth claim made us argue that non-refoulement would not apply for ‘minor’
    violations of procedural rights, such as a trial in absentia leading to a retroactive application of the death penalty. This was especially hard in the final round, where one of the judges was at the same time a member of the Human Rights Committee, which has consistently held exactly the opposite.

    But its what you have to do with the Jessup compromis. We didn’t get to choose what we wanted to argue, the problem authors did.

    Aside from that, arguing a final round is very different from arguing a regular Jessup round. You have the three judges, the opposing team, the ILSA big-wigs also sitting in front of you, and about 800 people behind you. You should take that into account before making such harsh judgments about the oral performance of a team in a final round. I’d like to see you do it.

    • mtalib
    • Posted April 24, 2009 at 7:38 pm
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    Thanks for your comments Guillermo. Sorry for taking so long to reply.

    I entirely agree with you that advocacy is not about unloading information and that the Jessup is an exercise in advocacy.

    The notable thing for me in the finals that in 2008 there was no reason AT ALL to run male captus. Because it is a stupid argument and there are stronger and better arguments that can be made with regard to Samara Penza’s capture that don’t rely on that doctrine at all. I know that because we didn’t utter the words male captus once except to say why it was wrong during our 5 moots. Not one team, not one judge, said our arguments were mistaken.

    That goes to the essence of good advocacy. Good counsel do not take crap points. Pleading crap points with the same sincerity that you plead good points is counter productive, duplicitous and in the real world fatal to your reputation. When the bench finds out that it can’t trust you to distinguish good points from bad ones – it can be a far more significant handicap as an advocate than having a weak case on one point.

    FTR: I don’t agree with you that refoulement is the best way to deal with the fourth issue. I think the respondent can and ought to cast it as an issue of jurisdiction and territory (i.e. if App loses declaration A, then presence on territory is illegal under issue 1 the Applicant cannot exercise any jurisdiction. If the App win declaration A and Operation Enduring Freedom was legal, any jurisdiction they exercise must be logically and rationally connected to the R2P justification for intervention.) Protecting criminals fleeing justice does not connect to the R2P rationale so any jurisdiction exercised is mis-conceived.

    Now this does have holes in it, but I believe it’s much better than getting dragged into a refoulement argument in which the law is utterly one sided. The refoulment argument can be run together with it or at least does not contradict it though.


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