Back in Moot Court

This week I've donned the judicial robe to sit six times on benches hearing arguments in the Jessup International Law Competition, which is held in Washington, D.C., this time each year. More than 100 teams from around the world compete--representing law schools and public policy programs--and the International Law Students Association manages to find some huge law firm to foot the bill. This year--White & Case; last year, Shearman & Sterling.

I got involved in this last year through the suggestion of my legal assistant on the Indonesia project I worked on in Jakarta about five years ago. She had represented the University of Indonesia law faculty in the Jessup Competition and then coached their term for several years. After winning a Fulbright to Boalt Hall at Berkeley, and passing the New York bar, she worked for an intellectual property firm in Austin and now is with a large Jakarta firm.

The competition requires all the teams to brief and argue a complex made-up case mythically set in the International Court of Justice in The Hague. The names of the countries are also made up but the legal issues are real. You may chuckle but in international law, the fact that a ship captain "discovered" a group of uninhabited islands in 1777, leaving a flag and a carved stone marker to show he was there, might be enough without more to support a successful claim derived from his being the first. Usually something commercial comes into play, so they have recently discovered oil near these islands, and the nearby nation that claims them versus a former colonial empire became independent right around the time that most of the South American countries did, in the 1820s.

There is a whole world of international law, made up of United Nations resolutions, ICJ and predecessor Permanent Court of Justice decisions, international conventions agreed to in Warsaw and Geneva, for example, and even a Convention that tells you to interpret other conventions, that one having been held in Vienna. There are all sorts of treaties, bilateral agreements, learned treatises, and other efforts to combine theories and precepts from both the Anglo-American common law and the European civil law.

I am always amazed that the concerned nations actually were willing on so many occasions to put their destinies in front of third-party panels or arbitrators. My favorite unlikely neutral was the one chosen in 1890 or so to decide the "Pig War" for control of the San Juan islands between British Columbia and Washington State--a conflict that left the remains of the British and American Camps as historic sites on San Juan Island. The Brits and Americans chose, of all people, Kaiser Wilhelm II. Perhaps the Kaiser was looking ahead because he seemed to come down on the side of the Americans when it came time to draw the line down through or around the islands.

The competition is fascinating to see how different students approach the task of argument. As with admiralty law, there are unusual terms: counsel are referred to as "Agents" and briefs are termed "Memorials." The argument style is a bit more formal than is common in the U.S., even the Supreme Court. If you make any kind of broad or conclusory statement, which might well serve to present your theory or underlying theme of the case, you will be peppered from the bench with demands for references to supporting authorities.

I've now sat with judges who are lawyers in Ghana, the Dominican Republic, and Germany this year and had an engaging conversation with a lawyer from Azerbaijan in the judges' lounge. To make my week complete, I long ago agreed to judge moot court arguments tomorrow night by some George Washington University law students. Amid their consideration of search provisions of criminal law, I might just ask them if they had considered the impact, say, of the Barcelona Traction case.