Expect the Unexpected

Comparing the International Court of Justice (ICJ) and Jessup is a bit like comparing apples and oranges. The ICJ’s mandate is to adjudicate contentious questions of international law, while one of Jessup’s main objectives is to connect law students from all over the world. Nevertheless, since the Jessup Competition of course aspires to simulate the ICJ, both are likely to be confronted with similar issues . This is obvious with regard to the legal content: The ICJ is probably the most frequently quoted Court in Jessup pleadings. But similarities also arise concerning questions behind the actual law. As judges at this year’s first virtual Global Rounds, we were intrigued to witness parallels to two debates that have long surrounded the ICJ: the diversity of judges and the occurrence of ex parte proceedings. While the latter was largely caused by the digital format, we hope that the former is here to stay.

Diversity And The “Invisible College of International (Jessup) Judges”

The question of diverse benches (at least regarding nationality) is as old as the notion of a “World Court” itself (Zimmermann et al., Article 9 para. 1). The underlying idea is to guarantee equity in representation in an internationalcourt, which, in turn, would ensure greater acceptance of the Court and its rulings. Today, Articles 2, 9 and 3 ICJ Statute lay down the cornerstones of the “World Court’s” composition. While the judges shall be “elected regardless of their nationality” (Art. 2), the electors should nevertheless “bear in mind […] that in the body as a whole the representation of the main forms of civilization and the principal legal systems of the world should be assured” (Art. 9). Such regional representation may not, however, lead to two judges of the same nationality on the bench (Art. 3). In practice, five of the 15 seats have customarily (usually) been “reserved” for the P5 (i.e. the five permanent members of the United Nations Security Council). The rest is distributed according to UN Regional Groups (cp. a study on the Court’s composition, and the current bench).

The importance of diversity at the ICJ has not only been proven by empirical research showing a certain degree of (subconscious) bias when it comes to the judges’ voting patterns. Recently, President Donoghue herself has reiterated these findings in her Reflections on the 75th Anniversary of the ICJ. While acknowledging the progress made regarding the composition of the judges, she noted that a truly international judicial dialogue requires diversity on both sides of the bench:

“While there are many aspects of international law on which jurists of all stripes can be expected to agree, we must acknowledge that there is no single, homogenized answer to many legal questions that arise in international disputes. As much as each individual may aspire to a cosmopolitan perspective, we must all have the humility to appreciate that we are shaped by our respective experiences. We must actively seek differing perspectives and promote open exchanges of ideas, especially with those whose views differ from our own.“

With its core settings modelled after the ICJ, the idea of a diverse judicial dialogue is as relevant to the Jessup as it is to the ICJ. So far, however, judges at the Global Rounds have been anything but diverse. While teams from roughly 100 different jurisdictions usually participate in the International Rounds, judges from (North) America have been hugely overrepresented. This does not come as a surprise: To judge the Global Rounds in Washington D.C., judges from abroad must not only invest their holidays but also stem travel expenses, accommodation, visa costs, and living expenses. With the online format eliminating these obstacles, we wondered what would happen if judges from all over the world can theoretically dial-in.

At first glance, our personal experiences from our virtual benches could be labelled “G8+5”: Fourteen of our 22 co-judges were either from the U.S. (1), Russia (2), Germany (2), the U.K. (2), France (1), India (3) or Canada (3). Overall, however, judges from fifteen different nationalities representing five continents sat on the virtual bench with us. Interestingly, we also judged with colleagues from states like Australia, the Philippines, and Singapore – despite huge differences in the time zones. Compared to our previous experiences in Washington, D.C., we thus felt that diversity had increased.

The overall numbers, however, are even more impressive than we had expected: The most apparent effect of the online format was the increase in the number of judges – from 250-300 judges usually present in Washington, D.C., to more than 1.000 judges participating in the virtual Global Rounds. While the share of first-time judges to the Global Rounds remained the same as in previous years (approx. 60-70%), the online format managed to attract over 600 new judges. With regard to diversity, these numbers translated into participants from approx. 100 different jurisdictions, compared to roughly 60 jurisdictions in previous years. This meant that the number of nationalities represented by the judges was equivalent to the number of nationalities represented by the teams. Additionally, the share of judges that listed (North) America as their home jurisdiction dropped to roughly 20%.

The Art of Ex Parte

While the question of internationality always will (and should) be a topic, the phenomenon of ex parte proceedings (i.e., proceedings without the participation of one of the parties) was novel to us – at least at the Jessup. In the sphere of international tribunals, ex parte is a well-known occurrence, with prominent cases such as Nicaragua (ICJ), Arctic Sunrise (ITLOS and PCA) and the South China Sea Arbitration (PCA), and even rather recent examples of “partial oral-only non-appearances”. While the reasons for states to appear or not to appear are manifold (see e.g. here), in instances of ex parte at the ICJ, the general rule is clear: Article 53 ICJ Statute provides for the continuation of the proceedings. There is neither an obligation to participate (Zimmermann et al., Art. 53 para. 77), nor does the refusal to participate bar the Court from deciding on the merits.

The Jessup is different in two regards: First, (obviously) every team must want to participate in the competition (although some oralists, faced with a particularly critical bench, might find the idea of relying exclusively on written submissions rather tempting). At the same time, the declared goal of the Jessup is to enable each team to present its pleadings. Secondly, pleadings at the Jessup are not decided based on the merits but on the overall performances of the teams (Rule 10.1 of the 2021 Official Jessup Rules). As a result, if a team does not show up for a match, the proceeding is conducted ex parte and the team present is awarded all Oral Round Points, thus winning the match (Rule 6.7). Although the Administrator may schedule an additional ex parte hearing for the previously absent team, this cannot remedy the forfeiture of the Round Points.

While this rule makes sense during an in-person moot, its effect could have been devastating to this year’s virtual Global Rounds: Mostly due to technical issues, the number of matches in which one of the teams failed to appear was exponentially higher. Out of the seven matches judged by one of the present authors, three were conducted ex parte. Applying Rule 6.7 could have further boosted this number, since every “no show” can in theory result in two ex partehearings. What is more, an automatic forfeiture of Round Points would have significantly disadvantaged teams with less reliable technical resources.

But how, as a matter of practice, do you argue a case when there is literally no one there to argue with? From our impressions and exchanges with fellow judges, benches in ex parte matches appreciated two things particularly: First, strong oralists referred us to propositions in the other team’s memorial and reacted to these arguments despite the other team’s absence. Especially as Respondent (or Applicant, in case of counter-claims), this spared them from having to build the other side’s case before taking it down. In doing so, oralists may even be able to guide the judges toward issues where their arguments are particularly strong. Secondly, responsive teams adapted their pleading times, allocating the full 45 minutes to the two oralists and waving their right to (sur-)rebuttal.

The 2022 Jessup Competition – What to Expect?

The 2020/2021 Jessup season was certainly not what anyone had expected. With Covid-19 forcing “Jessupers” to leave the beaten path, the first virtual Global Rounds posed many challenges but also offered new opportunities. From our personal experience and perspective as judges, we discussed two of these “virtual phenomena”.

Regarding ex parte matches, it seems relatively clear that their high number was caused by the digital format. Any observation made in this respect may therefore be redundant once the Jessup returns to in-person mooting. Nevertheless, it shows once more that the old Jessup wisdom holds true: As a Jessup participant, one must truly be prepared for and expect everything.

Concerning the nationality of judges, the composition of the benches exceeded our expectations: The 2021 Global Rounds did not only feel different and more diverse, but the virtual format did, in fact, attract judges from far more jurisdictions compared to previous years. At the same time, however, the online format is not a guarantee for diversity: Some pre-moots, such as the German National Rounds, were still dominated by largely national benches. Nor does it provide a long-term solution: Once in-person mooting returns, judges will face the same pre-pandemic obstacles to traveling to Washington, D.C.. Thus, to continue the 2021 Global Rounds’ trend towards more diversity, a rethinking of current approaches is needed. But this does not only concern national and international Jessup administrators. We believe that the “legacy” of this year’s virtual round could lie in the more than 600 first-time judges. Having caught (or re-ignited) the “Jessup spirit”, we hope that many are willing to remain engaged with judging and to work towards concrete measures to foster more diverse benches on the national and international level.

Many thanks to Michael Peil and Rusty Dalferes, long-time Jessup supporters, administrators and members of the International Law Student Association, who have shared their experience, some educated estimates, and available statistical data with us.