The ICJ Destroys the Jessup Competition

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Yep, you read that right. On Friday this week the ICJ will be handing down its much anticipated judgment in the Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) case, dealing with the whole Ferrini and Distomo immunity saga. Coincidentally, that same saga forms a large chunk of this year’s Jessup moot court competition, with hundreds of law students around the globe having toiled away at their memorials over the past few months and now busily preparing themselves for the national and international oral rounds of the competition (the latter taking place in the last week of March in Washington, DC). The compromis this year is a rather good one (read it here), dealing not just with immunities but also with the legitimacy of governments, attribution of conduct to international organizations, use of force, etc. All the more pity the ICJ is now poised to throw a wrench in it – judicial comity regrettably does not seem to extend to its pretend counterparts around the globe. I can just imagine the pain of all those students who will be forced to ‘distinguish’ the Court’s freshly-minted judgment in their oral pleadings (Germany is widely expected to win the case, but of course who knows). Bad karma for everybody involved. But the poor students mights still have their revenge, as the Court’s website may well crash from the Jessup hordes trying to access the live video feed and/or the judgment on Friday… Happy times.

(On a slightly more serious note, we’ll try to have commentary on the judgment as soon as possible).

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    jpaust says

    January 30, 2012

    But surely wherever the majority of the Judges comes out there will be other sides to argue, if only that the majority should revisit its recent decision and reasoning in view of the brilliant remarks of Jessup mooters on the other side.

    Michael Peil says

    January 31, 2012

    It's not the first time in the Jessup's history this has happened (in fact, not even the first time in recent memory). In fact, given that one of the criteria in Compromis selection is "timeliness," I'm surprised it doesn't happen more often!

    Thomaz Santos says

    January 31, 2012

    I believe "destroys" is a bit of an exageration. Sure, depending on how the ICJ decides the relevant points in the compromis may tilt towards one of the two parties, but I believe the drafters of the compromis had in my mind the possibility of the ICJ deciding the case before the Jessup rounds. Anyway, I think the Jessup competition will "survive" this attack. I'm curious, though, as to whether there were other instances where the ICJ decided a case relevant to the Jessup compromis before the national and international rounds. Can anyone think of any such occasion?

    Marko Milanovic says

    January 31, 2012

    Thomaz,

    Obviously, the whole post was firmly tongue-in-cheek!

    Michael,

    Equally obviously, I defer to you completely re the institutional memory of the Jessup. You are right that the timeliness requirement always raises the risk of this happening. The particular difficulty this year, however, was that the compromis was released on the eve of the oral hearings of the case which served as a template for one of the issues, thus raising the risk even higher, even though admittedly the Court really deliberated on this one fairly quickly. A further difficulty is that the compromis and the real case are factually practically indistinguishable, making thing very hard for the Jessup team on the losing side (*schadenfreude: on* "Yes, your excellency, we'd like you to overrule your judgment from two weeks ago. Seriously. Pretty please?" *schadenfreude: off*). Things will be a bit easier if there's going to be a serious split in the (real) Court, but I very much doubt it.

    Michael Peil says

    January 31, 2012

    "Two weeks ago" nothing... I'm headed out to Moscow in three days to judge the Russian National Rounds. "Your Excellency, I realize you just handed down this judgment yesterday, but... ah..."

    I'm with Thomaz -- I think the authors probably took this possibility into account, and I suspect the ICJ will be kind enough to leave "our" students some wiggle room.

    Thomaz Santos says

    January 31, 2012

    Marko,

    Sure, I'm aware of the "tongue-in-cheekness" of your comment. I just thought that such a situation, as Michael Peil clearly confirmed, is not new in the history of the Jessup competition. So, maybe, the ICJ can "seriously injure" the Jessup competition, how's that?

    On a differente note, I just remembered that in the International Rounds of 2004, that had a case dealing with international criminal law, the ICC genocide and other related issues, one of the judges in the final round was M. Cherif Bassiouni. When a student made a somewhat bold statement, Professor Bassiouni asked him what was his authority for that, to which he replied, "The works of renowned scholars such as... Bassiouni".

    Anyway, just a little Jessup anecdote. I'm sure Michael Peil has many others, probably funnnier than mine.

    AGD says

    January 31, 2012

    I don't know whether the decision in the "real" Court will be divided or not (Im guessing not) but what I can be 100% sure is that Cancado Trindade will issue a 300 page (minimum) Dissenting Opinion (again)... so the losing side at Jessup will at least have a lot of pages and quotes to defend their position lol

    Michael Peil says

    January 31, 2012

    Thomaz,

    That was classic. Even better was the ensuing exchange. As I recall, Bassiouni asked, "What gives this Court the power to consult the opinion of this author?" The Agent replied, "Article 38(1)(d) empowers this court to refer, as a subsidiary source, to the teachings of eminent publicists. Professor Bassiouni is... [blah blah blah] and was the principal author of [blah blah blah]." Bassiouni grinned, cut the Agent off after about 45 seconds and said something like, "I think you've convinced the Court, Agent. You may proceed with your argument."

    Tobias Thienel says

    February 1, 2012

    Marko,

    if memory serves, the ICJ website crashed every time they put on a live feed of the delivery of a judgment. So the revenge of Jessup 'counsel' may be somewhat ineffective.

    Marko Milanovic says

    February 1, 2012

    Tobias,

    I remember it crashing for the Kosovo AO - but not every time! Bandwith issues I imagine.