I’ve been reflecting on the Jessup regional round here on Saturday morning. The bench I watched, led by Andrew Bruce SC approached the problem from a very pragmatic and practical approach.
As I mentioned in my last post, this years problem shows some very potent defects when investigated from that perspective. I thought it would be worthwhile to post the best question I heard that day on here.
In Declaration 2 the Applicants ask that the Respondents be forced to disclose the classified evidence that they relied on before the UN Security Council and in other correspondence in the Compromis. The Respondents seek to resist that declaration.
The bench rightly pointed out that Declaration 2 is parasitic on the issue in Declaration 1. The classified material is evidence that would help prove the case in Declaration 1.
The Bench seized on this to weave a clever question for the Applicant.
Why does the Applicant want to win Declaration 2 at all?
When that question was asked, the two sets of Applicants I saw were stunned. They stood there for a few seconds, their brain desperately working to find a credible answer. Both sets admitted that they didn’t have one at the end.
When you think about it, it’s clear why this is an impossible question for the Applicant to answer well.
In Declaration 1, the issue requires the Respondent to prove their case to win the declaration. This is because the intrinsic nature of a use of force issue which puts the burden of justifying intervention on the state that does the intervening.
If the Applicant looses Declaration 2, there’s almost no chance that the other evidence justifies the intervention. By loosing Declaration 2 it almost definitely wins Declaration 1.
If they insist on the evidence being produced, then they take the risk of what that evidence will say. It may be the case that the evidence is conclusive and reliable. In fact given the Secretary General’s report – it almost certainly is both conclusive and reliable. At the very least it is likely to be both. By winning Declaration 2, the Applicants increase their chance of loosing Declaration 1.
They don’t want to win Declaration 2. Too few teams have realised that’ truth.
The ICSID Blog 
I think the jessup problems are intentionally framed in such a way, and this applies if you notice not just to this year’s problem but to the problem almost every year. But yes I agree it was most apparent in the problem this year. If you notice, logically speaking declaration 2 should have come before declaration 1, b’cus 1 would normally be dependent on 2, but placing the declarations in that order would have made the inherent contradictions more clear and thus leaving less scope for such out of the blue questions by the judges.
I agree with you. The declarations are arranged that way to ‘hide’ the problem. It’s just such a gaping flaw to hide, especially because it shows a lack of thought about how parties ought to practically conduct their case.
The premier international law competition in the world, which is what the Jessup is, should not have a Compromis that has to be juggled around to hide obvious defects in the drafting of the problem.
Trust me when I say this but the people from ILSA (read Ashley Walker) read your blog. I served as a Memorial round judge for the jessup national rounds of Colombia a few weeks ago, and some days ago Ashley dropped me a mail ‘asking me to clarify’ (read interrogating) about all the previous comments regarding serving as a team assistant that I had discussed on your blog. She was afraid I might have a conflict of interest if I had served as a team assistant to some team especially since her records at ILSA did not show me as one.
So through this blog I hereby clarify to one and all that despite my intentions to do so and inspite of queries from certain participants I have not been an assistant or in any other way supported any Jessup Participating Team.
Dear Ashley I hope that you wont ban me from contribution to jessup just because of what I might have said on mtalib’s blog
Chaitanya Safaya
I’m a member of the Colombian team that brought this to the attention of ILSA. The problem for us was not only that of you being a team advisor, but also that -from our google search- you appeared to be still an LL.B. student, which would automatically disqualify you from being a judge.
Other than that, we had no reason to formally complain to ILSA, as there is no way to complain about bad scores. However, I would now point out that your style of judging was disastrous. It was a show of carelessness. Your arrogant comments on our memorials were not very helpful, and the low scores you awarded us can be compared with the much higher scores that other ten memorial judges gave us (earning us the #1 spot on the memorial ranking for international rounds). Among the 11 different judges that we had, you were the anomaly.
Please take this advice. If you are going to be involved in the Jessup on a regular basis as a judge, be extremely careful with the scores. This is a matter of respect for the team. Your scores are the decision on the hard work of a team of students during several months.
– Guillermo Otálora Lozano
I would add that the comments that you leave on the scoring sheet are not an opportunity for you to show how demanding you are as a judge but rather to help students with their writing skills.
As said above, low-scoring a memorial and leaving an arrogant comment behind, doesn’t really help those who wrote it. Perhaps we are in a better position to make this so clear, considering that those memorials which you graded were later awarded as the best of the international rounds. Your comments, however, were entirely unhelpful. This seriously impairs the learning process.
In the future, please try and help the students with the comments after you grade a memorial. After all, this is the hard work of real people.
Guillermo and Sebastian,
Given that you have already made a formal complaint to ILSA, and this is a matter that seems personal between you guys and CS, I would appreciate it if you did not use my blog as a vehicle to carry forward your battle.
Speaking personally, it strikes me as extremely vindictive and ill advised for a winning team to treat the comments and approach of one judge so harshly. As you are the champions, I believe it would be better if you behaved with the grace and decorum that befits your achievement.
I apologize for this use of your blog, and I promise that it will be my last message here. I will just clarify first that this is not a ‘battle’ with him. I think the competition cannot progress if the competing teams do not get the chance to give their own feedback to the judges, even if this feedback sounds harsh against the judge. The teams always get harsh comments and questions from judges, and we have always been instructed not to take them personally, but as a chance to learn how to do better in the future. If Chaitanya gets to read this, he should probably do the same, and try to improve his own judging skills.
In any case, so as to not spam your blog with these comments, I can receive any response, if either you or Chaitanya would like to answer, at my e-mail address: guillermo.otalora [at] gmail [dot] com
Thanks for your patience.
– Guillermo
Guillermo,
Thank you for your understanding on this point.
As I do my own share of moot judging, I know how valuable it can be for a judge to receive feedback. However, it would be good if you could put it in a constructive form, and I’m sure that CS will take it on board.
I hope it won’t be your last comment on my blog – I’m halfway through responding to your comment on my post about the 2008 Jessup final, and would like to hear your views then.
Dear Guillermo and Sebastian,
WOW!!!
Congrats, you guys deserved it.
‘So as not to spam the blog’, I would respond to your comments on your mail later.
The applicant wishes to win Declaration B in order to test the reliability of the evidence relied upon by the respondent to justify the respondent’s invasion of Alicanto.
Just to clarify – Although the applicant’s first argument should be that there is no right of humanitarian intervention at international law, their second ‘in the alternative’ argument, is that even if there were such a right, the conditions have not been fulfilled because the evidence relied upon by the respondent should not be given weight by the court.
How does obtaining the evidence assist the applicants case?
If the Applicant does obtain the evidence the it takes the risk that the evidence is reliable and justifies the intervention. If so it will loose issue A by winning Issue B.
If the Respondent does not present the evidence, then because the intervention is prima facie a breach of the UN Charter until justified, the burden of proof means that the Respondent will have to justify its intervention with less material to rely on. Less material means a lesser chance of success. Therefore by not tendering the evidence the Respondent makes it more likely that it will lose Issue A.
In no circumstances does the Applicant want to win Issue B as a matter of practicality.
Yes – I see your point. That’s an excellent question. BUT the Secretary General has the evidence, and based on that evidence he wrote his report. Historically, the ICJ has given much weight to the reports of the SG (Congo v Uganda, Bosnian Genocide). The problem here is that the evidence that the Court has before it already – the evidence that the respondent can ALREADY rely upon, even if the classified intelligence is not revealed, ie the Secretary GEneral’s report, that evidence should not be given any weight. That’s the bottom line. That’s what the Respondent ends up arguing – that the court should not give any weight to the SG’s report because the evidence upon which it relies is untested. And therefore that diminishes the Respondent’s case and helps the applicant.
The key point we relied upon is that in giving weight to the SG’s report, the Court is abdicating its fact finding role. The Court should call upon Ravisia to produce its classified intelligence, because it cannot accept the conclusions of the SG’s report as its own.
It is a fundamental principle of law that no matter how well qualified a source, whether independent expert, or the Secretary-General, the Court cannot delegate to him or her the Court’s own duty of deciding the case.
(1987 Decision of Iran US Claims Tribunal in Starrett Housing v Islamic Republic of Iran, 196-7)
Primarily, the Applicant seeks an order from the Court that Ravisia produce its classified evidence. The court has the discretion to call upon evidence, in accordance with art 49 of the statute and article 62(1) of its rules.
The Court will call upon evidence when it is necessary to elucidate a matter in issue, such as the existence of a humanitarian emergency. Evidence will be necessary where the alternative available evidence lacks weight.
Crucially, here, the court should call upon the Ravisian intelligence, because
1. The assertions of imminent ethnic cleansing need to be tested and rebutted by Alicanto
2. The alternative evidence, the Secretary General’s report, should be afforded no weight.
This is because the conclusions in the Secretary General’s report are secondary evidence.
Therefore:
i) Ravisia cannot rely on the SG’s report to assert the existence of a humanitarian emergency
ii) Demonstrates a need for Ravisia to produce the classified intelligence so that it can be tested and rebutted.
iii) If the Court does call upon Ravisia to produce the evidence, and Ravisia refuses, given the little weight that should be afforded to the SG’s report, this Court should then call upon the SG to hand over the intelligence.
Basically the difference between what you’re arguing, and what we ended up arguing (as above) is that you are starting from the premise that the evidence the respondent is relying on is too weak to justify the invasion.
We estimated that their evidence is stronger than you did, (given past reliance on SG’s reports by the Court) and so we needed to ‘knock out’ the SG’s report in order to weaken the respondent’s case.
I agree it was a paradoxical and conceptually difficult declaration to argue.
Dear Guillermo & Sebastian
This is in regard to your complaint against Chaitanya Safaya to ILSA. Kindly clarify, how terming a judging style of a Jesssup Memorial Judge as “careless”, “arrogant” and “disatrous” is any less Haughty attitude than the one that you are alleging. Every judge has a unique style of Judging. Even if Chaitanya’s style of Judging was “arrogant” as you allege, there is absolutely no bar nor anything wrong with that style of Judging. If ILSA thought of Chaitanya as capable enough to Judge the memorials, then exactly where do you derive your right to be critical of his judging style. Given that he was an anomaly amongst the 11 different Judges that you had and that you got the # 1 spot on the memorial Rankings, how does it reflect at all on Chaitanya’s Style of Judging. Are you implying that that as 11 judges found your memorial to be the best, chaitanya loses his right to differ? Go read the Fountainhead again. Funnily enough you do not allege that Chaitanya singled you out. You don’t allege discrimination or biasness but simply that he was harsh with you, which he has the full right to be. Kindly remember that Jessup is a competition, and the minute you participate in one, you submit yourself to the criticism of all and every Judge that ILSA throws at you. If you were alleging discrimination or personal Bias, you would have been making a logical point, but you are not. Simply because your pride was hurt with the low scores in your memorials, you did a basic google search and dug up things against Chaitanya which may or may not have been true. Now if chaitanya had been part of your appreciation brigade, would you not have simply ignored his alleged fallacies in qualifying as a Jessup Judge.
Mtalib, sorry !