Academic journal article Proceedings of the Annual Meeting-American Society of International Law

Celebrating the 50th Anniversary of the Jessup Moot Court Competition

Academic journal article Proceedings of the Annual Meeting-American Society of International Law

Celebrating the 50th Anniversary of the Jessup Moot Court Competition

Article excerpt

ANNUAL DINNER OF THE AMERICAN SOCIETY OF INTERNATIONAL LAW

The special dinner event began at 6:30 p.m., Friday, March 27, in commemoration of the Philip C. Jessup International Law Moot Court Competition. Judge Stephen M. Schwebel of the International Court of Justice (retired) and Judge Rosalyn Higgins of the International Court of Justice (retired) were the distinguished speakers.

REMARKS BY STEPHEN M. SCHWEBEL *

Fifty years ago, in 1959, I was a newly minted Assistant Professor of Law at Harvard Law School--newly minted, but not bright and shiny. The brightest element of my daunting teaching load was jointly teaching the basic course in public international law with Professor Richard R. Baxter. Baxter and I had become friends in 1950 when we both studied with Professor Lauterpacht at Cambridge University. Baxter, then a captain in the Judge Advocate General Corps of the United States Army, had been sent to plumb the depths of the law of war under Lauterpacht, who had recently revised the British War Manual. I found myself in Cambridge studying international law on Harvard's Knox fellowship. It was a pleasure nine years later to be teaching together with Baxter, who was as effervescent as he was acute.

Moot courts were an entrenched institution of Harvard Law School teaching. One day Baxter proposed that we set up a moot court in international law. I said, "Good idea," whereupon, in best military style, Baxter said that I had just volunteered to draft the problem to be put to the moot court advocates. So I prepared a problem on a topic current then and current today: Cuba's discriminatory and confiscatory expropriation of American owned property in Cuba.

The court was composed of Professor Milton Katz, Professor Roger Fisher, and myself. The advocates were Tom Farer, William Zabel, Ivan Head (a Canadian), and Bernard Clark (a New Zealander).

The argument went off beautifully and gave birth to the Jessup Competition. Baxter, with my agreement, so named it in honor of Professor Philip Jessup of Columbia Law School. Jessup was a magnificent man, eminent not only as a teacher and scholar but as a diplomat, having served with great success as United States Ambassador-at-Large. He was also among the company of Americans slandered by Senator Joseph McCarthy. Senator McCarthy's slanders notwithstanding, Jessup was nominated for election as a judge of the International Court of Justice in 1960 and served with great distinction. Baxter wrote a discreet note for the American Journal of International Law which bears on the nomination of Jessup for the Court.

In 1960, the second Jessup Competition took place between teams from Harvard and Columbia Law Schools. Thereafter, it spread among other American law schools.

By the time that I was appointed as Executive Director of the American Society of International Law in 1967, the Jessup Competition had spread widely in the United States. Its administration shifted from one law school to another each year, and suffered from instability and poverty.

One of my first initiatives as Executive Director was to put the Jessup Competition on a broader, more solid base. I worked up a foundation application that provided for appointment of a Fellow of the Society whose duties would include establishing a central office for administering the Jessup Competition, and for funds to bring teams from overseas to compete with American teams. The then President of the Society, a senior partner of Sullivan & Cromwell, John Stevenson, quickly approved and almost as quickly produced a grant from the Henry Luce Foundation. The international Jessup Competition, administered by the first Fellow, Jim Nafziger, was off to the races, and it has been running at high speed ever since. As those who have taken part in it, as advocates and as judges, know, it is a superb teaching tool. It not only teaches the substance and procedures of international law and litigation, but it also demonstrates to the participants that there is more than one side to the issues of international law.

As fate would have it, not only Jessup, but Baxter and I came to serve as judges of the International Court of Justice. That great Court serves as the model for the Jessup Competition, and, as Judge Higgins will shortly show, it is a Court of considerable achievement.

* Former President, International Court of Justice

DEPARTING THOUGHTS ON THE INTERNATIONAL COURT OF JUSTICE

This fantastic evening undoubtedly belongs to the Jessup Moot Court and to all who are, and have been, associated with the competition. It is wonderful to be present on this exceptional occasion and to have listened to the remarks of Judge Schwebel.

The young participants in this truly remarkable annual mooting competition are the advocates of the future. And they are coming from all over the world.

The International Court of Justice (ICJ) is resorted to by states from all over the world. And it is encouraging that there is being built up this cadre of advocates expert in international law who can serve this growing global demand. What is happening here, in the Jessup program, fits with what we see at the Court--still the megastars of the International Bar as guns for hire by states who litigate, but also a developing cadre of home-grown international lawyers to serve on the litigation teams.

It is now some six weeks since I shed my responsibilities at the Court and it is now in the very capable hands of President Hisashi Owada. American Society of International Law President Lucy Reed has suggested that I offer some departing thoughts.

I think these may best be harnessed by reference to what has remained constant these fourteen years I have been at the Court; what has changed during this time; and the challenges ahead.

WHAT HAS REMAINED CONSTANT

Let me begin with what has remained unchanged these last fourteen years.

As you know, the International Court of Justice has two tasks under the Charter. The first is to settle legal disputes between member states. And the second is to assist the work of the United Nations by rendering Advisory Opinions in response to requests that might be made by the General Assembly, Security Council, and the Economic and Social Council (ECOSOC) and its sixteen designated specialized agencies. The latter work is always given a certain priority, should the Court be informed that the request is an urgent one, and this testifies to the Court's place in the UN system as a whole. All this remains as ever it was.

Litigation before the International Court is still dependent on consent of both parties. Incidentally, the United Nations stands almost alone in this state of affairs; nearly all international and regional organizations today have obligatory reference to the relevant Court as part of the membership package. And in the many suggestions for Charter reform made in recent years by the Secretary-General, and by member states, there has not been the faintest suggestion that judicial settlement of disputes within the UN system should be other than optional. No change here.

Another more positive constant is the impartiality of the bench. The judges of the ICJ are elected by the broadest possible membership of the United Nations, and they are required to act independently, regardless of their nationality. Their independence from national interference is a reality. The judges sit in equality, regardless of whether they come from a large or small state. Their conditions of service may not be altered during their tenure. The Court itself makes an annual report to the General Assembly, but is not subordinated to the Assembly--the Court is a main organ of equal standing.

The quality of the judges remains vital. It guarantees the quality of the judgments because, in the ICJ, the judges are the people who prepare for the cases, writing judges' notes that are exchanged, participating in extended deliberations as to the points of law--and writing the judgments. As Judge Simma has mentioned in a panel, in virtually every other international court and tribunal, much of the drafting, indeed all the drafting, is done by the judges' clerks. In those other courts and tribunals, the judge may then make a few corrections or improvements before signing off on what goes out under his or her name.

In the International Court, the judges' notes--the initial explanation of how a judge is seeing things, before he or she engages in discussion with colleagues--is prepared by the judge. And the judgment itself is prepared by two judges and the President, those judges having been elected by their colleagues to serve on the drafting committee for that case. The assistance of the registry, and the clerks we share, is appreciated and vital for research, checking of citations, ordering of our files--but it is the judges, and the judges alone, who write the judgments. No doubt, if the preparation of judgments was delegated to more junior people, more judgments could be produced. But they would not be judgments of the same quality. I may also add that little gets by fifteen judges working in this way.

And it is the quality of the judgments that not only contributes to the development of international law, but also buttresses the remarkably high rate of their acceptance and implementation. It happily is still the case that judgment implementation remains a rather small problem, and the complications arising from the federal-state dichotomy in Arena should not lead us to think otherwise. In all the judgments that the Court has handed down since 1946, there has been a problem of implementation in less than a handful. The reputation of the Court, its quality and impartiality and its place as a main organ of the UN, acts as a powerful factor in favor of compliance with its judgments.

The International Court is still truly the Court of all the United Nations. The Charter requires that members of the Court represent not their countries, but the diverse legal systems existing in the world. And the judges do indeed come from all corners of the world, encompassing backgrounds in civil law, common law, and other important forms of law. The present bench consists of judges from Japan, Slovakia, China, Sierra Leone, Jordan, the United States of America, Germany, France, New Zealand, Mexico, Morocco, the Russian Federation, Brazil, Somalia, and the United Kingdom.

The ICJ is also the Court of the United Nations in terms of the diverse range of states who appear before it. The cases decided in the past year alone have involved states from every United Nations regional group: Asia, Africa, Western Europe, Eastern Europe, North America, and Latin America.

A less pleasing but all too constant theme is the constrained financial situation of the International Court. The Court has long operated on a shoestring budget. Being a main organ of the UN, the Court is prohibited from seeking funding from any source save the UN itself. It can not go to governments or to foundations. The annual budget is US$20 million, compared to an annual budget of US$175 million for the International

Criminal Tribunal for the Former Yugoslavia and the International Criminal Court's annual budget of 100 million euro. With the ICJ's meager budget, it is a struggle to give lunch to judges visiting from other leading courts. It is exceedingly difficult to mount judicial seminars or to travel to the UN. There are simply no funds for anything as such. And the Court does not have the resources it feels it needs, in terms of personnel and of information technology, for carrying out its judicial work. The UN remains content for one of its main organs to operate on a sum that is less than 1 percent of the entire UN budget.

WHAT HAS CHANGED

I now turn to what has changed over the past fourteen years. There has been a significant widening of the client base of the Court. The states that are using the International Court include the "traditional clientele" such as the United States, France, Germany, the United Kingdom, and Spain. But states from what was Eastern Europe, from Asia, Africa, Latin America, and the Middle East have also appeared before the Court in the past decade. Moreover, the number of cases involving African states has doubled over that period compared to the two decades between 1960 and 1980.

The subject matter of the cases has also broadened. States continue to bring the classical types of disputes to the Court, such as maritime delimitation and territorial border disputes. I have only to mention Qatar v. Bahrain (2001), Cameroon v. Nigeria (2002), Indonesia/ Malaysia (2002), Benin/Niger (2005), Nicaragua v. Honduras (2007), Malaysia/Singapore (2008) and Romania v. Ukraine (2009). At the same time, cases on cutting edge topics of international law are also being brought to the Court. One need only look at the subject matter of the pending cases on the current docket: genocide, crimes against humanity, racial discrimination, environmental law, diplomatic protection of nationals, universal jurisdiction and immunities of state officials, the alleged aerial spraying of toxic herbicides, the right to pursue membership of relevant international organizations, and the accordance with international law of a unilateral declaration of independence. The Court has also become a Court that no longer regards human rights as at the edge of international law, but at its very center. The arrival of certain judges who have had a pre-life in human rights, and a general change in culture, has led to this.

In the eighties, the pace at which cases were coming to the Court began to pick up--I would say that this upwards line on the graph began in the late eighties and has remained on an elevated level now for about twenty years. Since June 2008, six new cases (including an Advisory Opinion on Kosovo) have been submitted to the ICJ.

Inevitably, this pleasing development brought with it its own problems. A major problem was that, with the very modest resources at its disposal, and with the work methods it was then employing, a backlog was building up. By "backlog" I am describing the phenomenon of states having to wait too long, after all their written pleadings are complete, for their case to come on for oral hearings.

The Court had to undertake a variety of internal changes including establishing a very heavy schedule, with always more than one case under consideration at a time, cutting vacations to an absolute minimum. Instead of periodic reviews of the entirety of its rules, the Court has turned to rolling reviews of its work practices for purposes of maximizing efficiency. The Court now holds annual strategic planning meetings and also has a Committee the Rules Committee--which considers how to improve efficiency while maintaining the high quality of the decisions.

The Court has made great use of information technology. In the second half of the nineties, the Court embarked upon the making and launching of its website. We were one of the earliest courts to have a website, and I think I may safely say that our website--now in its second incarnation--is widely admired and appreciated. It is a fantastic source of information, very user-friendly, and a great way for us to communicate with states, scholars, and journalists alike. When I came to the Court in the summer of 1995, the world of judicial websites hardly existed. The Court used to send out 1500 copies of its judgments to persons who indicated their interest in our work. We thought then that there was a limited, finite interest in the work of the Court. When the website was launched, 80,000 copies of the next judgment were downloaded. The potential interest in our work, if we could find a means to make it known, was exhilarating. The current figures show that the website receives an average of 160,000 visits per month.

Procedural improvements involve not only the Court, but also the parties that appear before it. To this end, the Court introduced practice directions in 2001. These are essentially indications from the Court as to how it requires the parties to proceed in a variety of practical matters--including the presentation of files for the judges in the oral phase, the length of written pleadings, and matters to be covered in oral pleadings.

The Court moved to dealing with cases in an "overlapping" fashion--that is to say, beginning work on one case as the end came in view of our handling of the prior case. At one somewhat stressful point last year, four cases were being handled simultaneously.

I hoped, upon assuming the presidency in February 2006, that these new work procedures might allow the Court's backlog to be eliminated by the end of the triennium by February 2009. Ultimately, we were able to inform the General Assembly in October 2007 that the backlog had been eliminated; and to affirm before the Assembly in October 2008 that the Court remained without a backlog. This means that any state coming to the Court today can expect its case to be brought on in timely fashion after the conclusion of the written pleadings.

The increase in the number of new courts and tribunals has generated a certain concern about the potential for the "fragmentation" of international law, and we have heard mention of this issue in some of the sessions this week. I simply want to say that the Court has methodically set about the practical business of minimizing any such possibilities and has determined to do so in a realistic, respectful, and friendly fashion. The best way to avoid fragmentation is for international judges to keep well-informed of each other's decisions, to have open channels of communication, and to build on the cordial relationships that already exist among the various courts. We have set up a system whereby summaries and/or relevant excerpts of cases that address legal questions of particular interest are exchanged with judges from other international courts and tribunals. The ICJ has also hosted seminars on legal topics of mutual interest, where it is particularly important that we sing from the same song sheet, with judges from other international and regional courts.

THE CHALLENGES AHEAD

As Judge Brower said in his marvelous Hudson Medal speech, the tasks are never complete. We are on a constant journey. The first challenge ahead is to ensure that the progress we have made is not lost. That is a task that no institution should underestimate or neglect. To maintain progress made cannot be taken for granted. It is also vital to maintain the quality of the Court. That depends in part upon leadership at the Court itself, but, in even larger part, upon the member states of the UN who elect the members to the bench. It is vastly important that that function is not politicized. By that I mean that only candidates of the highest caliber should be put forward by the national nominating groups, and states should vote--within the varying regional groups, of course--for the very best candidates. Candidates should not be elected because they are to be packaged as part of a deal for another election elsewhere in the UN nor even, dare I say, simply because they are women. Quality is paramount.

The Court will need to maintain its throughput of cases. It is absolutely critical to the reputation of the Court and its usefulness to the states coming to it for the resolution of their disputes.

There will no doubt continue to be battles to be fought within the Court between those who are more or less open to change. And the Court will always need to fight for resources--financial and human. With a UN committed to zero-growth budgets, this will be particularly challenging. The Court will constantly need to think about how it presents itself, about the most appropriate relations with the media and the public.

Then there is always the challenge of the unknown--unforeseeable, but sure to happen. I am sure that these challenges will be met by the Court in its new composition under the presidency of Hisashi Owada.

And I, as I lie on my hammock, sipping my martini, will wish them well.

By Rosalyn Higgins, Former President, International Court of Justice

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