Basic PIL QuestionsJessup2018

San Beda-ILS: Jessup Moot 2018
People’s Democratic Republic of Anduchenca v. Federal Republic of Rukaruku
Jessup Basic Legal Questions
What is the basis of jurisdiction of this court in this case?

The jurisdiction is based on Article 36(1) of this Court’s Statute which states that all matters
specially provided for in treaties and conventions enforced are thus cognizable.
What law is applicable to this case?

Matters before the International Court of Justice are decided in accordance with international law
under Article 38 of this Court’s Statute.
Further, it also gives power to the Court to decide a dispute ex aqueo et bono---that is on the basis
of equity, if the parties agree.
What are the sources of International Law?
Under Art. 38 of the Statute of the ICJ, the sources of international law are:
(a) International conventions, whether general or particular, establishing rules expressly

recognized by the contesting States (e.g. Vienna Convention on the Law of Treaties);
(b) International custom, as evidence of a general practice accepted as law (e.g. prohibition against
genocide, torture, slavery, crimes against humanity);
(c) General principles of law recognized by civilized nations (pacta sunt servanda, res judicata,
due process), and
(d) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly
qualified publicists of the various nations, as subsidiary means for the determination of rules of
law
The same provision states that “the enumeration shall not prejudice the power of the Court to
decide a case ex aequo et bono (by what is fair and good), if the parties agree thereto”.
What is a treaty?
Article 2 of the VCLT defines a treaty as an international agreement concluded between states in
written form and governed by international law whether embodied in a single instrument or in
two or more related instruments
What is the principle of pacta sunt servanda?
It is a basic principle of international law that is now codified in Article 26 of VCLT which
states that “every treaty in force is binding upon the parties to it and must be performed by
them in good faith.”
What is the value of the preparatory work of a treaty?
According to Article 32 of VCLT, the preparatory work of the treaty and the circumstances of its
conclusion are supplementary means of interpretation.
4. May the provisions of a treaty ripen into a customary international law?
Yes. According to Prof. Brownlie, treaties and international agreements create law for the parties
thereto and may lead to the customary international law when such agreements are intended for
adherence by states generally and are in fact widely accepted.
What are the elements in customary international law?
+
ICJ has been constant in stating that a customary rule requires the presence of the two (2) elements:
1) state practice, 2) opinio juris (S.S. Lotus [France. v. Turkey], 1927 P.C.I.J. (ser. A) No. 10,
Sept. 7, 1927).
1. State Practice (Objective) requires must first be evidence of substantial uniformity of
practice by a substantial number of States.
2. Opinion juris sive necessitatesis the psychological factor, the belief by a state that behaved
in a certain way that it was under a legal obligation to act that way; states will behave a
certain way because they are convinced it is binding upon them to do so
Who has the burden of proving the existence of a rule of customary international law?
In the Corfu Channel Case, the ICJ set out the burdens of proof applicable to cases before it. The
Applicant normally carries the burden of proof with respect to factual allegations contained in its
claim, by a preponderance of the evidence. The burden falls on the Respondent with respect to
factual allegations contained in a cross-claim.
What are general principles of law?
These are universally adhered to principles, such as prescription, res judicata and pacta sunt
servanda. They are deemed necessary for the maintenance of justice.
Can secondary sources or decisions of national courts be sources of international law?
Yes. According to Art 38(1)(d) of this Court’s statute, judicial decisions, whether from
international tribunals or from domestic courts, are useful to the extent they address international
law directly or demonstrate a general principle
Who are highly-qualified publicists?
These are writers whose main value depends on the extent to which the books and articles cited
are works of scholarship, that is to say, based on thorough research into what the law is said to be
(lex lata) rather than comparing the views of other writers as to what they think the law ought to
be (lex ferenda). (Aust)
Examples of highly qualified publicists are: Ian Brownlie, Vaughan Lowe, L. Oppenheim,
Malcolm N. Shaw
Is the reference to the “teachings of the most highly qualified publicists” limited to
individual publicists or writers?
No. It includes entities such as the International Law Commission (ILC) which was established by
the UN to encourage the progressive development of international law and its codification (UN
Charter, Art 12(1)(a))
What is the legal status of a resolution of the General Assembly and in what circumstances
can it be strong evidence of a rule of customary international y7gv ylaw?
According to Article 10 of the UN Charter, resolutions of the UN General Assembly are mere
“recommendations” on questions or matter within the scope of its authority. They are not legally
binding. As such, they do not constitute norms that are binding on member States. However, in
some cases, they may be subsidiary means for determining a custom, if is adopted without any
negative votes and if States have in practice acted in compliance with its terms.
Does this Court have the power to order relief other than the declarations requested by the
parties in the ad hoc agreement, and if so, under what authority?
Yes. Article 38(2) gives power to the Court to decide a dispute ex aqueo et bono that is on the
basis of equity, if the parties agree.
What is the concept of ex aequo et bono?

It literally means "according to the right and good" or "from equity and conscience". Article 38(2) of
the Statute of ICJ provides that the list of sources in Article 38(1) shall not prejudice the power of the
court to decide cases ex aequo et bono, but only where the parties agree thereto.
What is meant by “reparation,” when does the duty to make reparations arise, and what is
your authority for this? Would either compensation or satisfaction be appropriate remedies
for either of the States in this case?
According to Article 34, 35, 36, 37 of the Articles on responsibility of States in internationally
wrongful act and In Chorzow Factory case, Reparation is a principle of international law that the
breach of an engagement involves an obligation to make reparation in an adequate form.
Reparations include restitution, compensation, or satisfaction
The preferred form of reparation is restitution, which requires the State to re-establish the situation
which existed before the wrongful was committed.
Is a State responsible for an internationally wrongful act?

Yes, every internationally wrongful act of a State entails the international responsibility of that
State (Art. 1, ARSIWA).
What is meant by a state being “internationally responsible” to another state, and what are
its consequences? What is an internationally wrongful act” and what are its consequences?
According to Article 2 ILC ARSIWA it is when its acts or omissions constitute: first, a breach or
international obligation; secondly, the breach is attributable to the state.
When are the acts of individuals or private groups imputable or attributable to a State?
Article 8, ARSIWA provides that a State is responsible only for the acts of its organs or of persons
acting under its control and authorization.
What is the status of the ILC Articles on State Responsibility, and what is their status as
sources of law under Article 38 of the Statute of this Court?
They are considered as teachings of the most highly qualified publicist. The ILC was established
by the UN to encourage the progressive development of international law and its codification. (UN
Charter, Art 12(1)(a))
What are obligations erga omnes and jus cogens?
Obligations erga omnes refer to tthose obligations which, by virtue of their nature and importance,
are ‘the concern of all States’ and for whose protection all States have a ‘legal interest’, e.g.,
obligations arising from the outlawing of aggression and of genocide (Barcelona Traction Case
[Belgium v Spain] ICJ Rep 1970 3 [Feb 5]).
Jus cogens or a peremptory norm of general international law is a norm accepted and recognized by
the international community of States as a whole as a norm from which no derogation is permitted and
which can be modified only by a subsequent norm of general international law having the same
character. (Article 53, VCLT)

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San Beda-ILS: Jessup Moot 2018

People’s Democratic Republic of Anduchenca v. Federal Republic of Rukaruku

Jessup Basic Legal Questions

What is the basis of jurisdiction of this court in this case?

What law is applicable to this case?

(a) International conventions, whether general or particular, establishing rules expressly

What is the concept of ex aequo et bono?

Reparations include restitution, compensation, or satisfaction

Is a State responsible for an internationally wrongful act?

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