MODEL COURTS OF JUSTICE 2013

HANDBOOK FOR ICJ

Legal claim: This document is a work of Model CJ Secretariat and shall not be inspired, copied or

used without the consent of the Secretariat.

HOW THE INTERNATIONAL COURT OF JUSTICE PROCEEDS

In order to be authorized to try the case, the ICJ needs to have a jurisdiction on the dispute.

This jurisdiction should be established pursuant to Articles 36 and 40 of the ICJ Statute.

International Court of Justice has trigger mechanisms regarding the Article 36 of ICJ Statute.

According to this article the jurisdiction of the Court comprises all cases the parties refer to it

and all matters specifically provided in the Charter of the United Nations or in treaties and

conventions in force. The states who are parties to the present Statute may at any time declare

that they recognize as compulsory ipso facto and without special agreement, in relation to any

other state accepting the same obligation, the jurisdiction of the Court in all legal disputes

concerning:

“a. the interpretation of a treaty;

b. any question of international law;

c. the existence of any fact which, if established, would constitute a breach of an international

obligation;

d. the nature or extent of the reparation to be made for the breach of an international

obligation.”

In addition, Article 40(1) of the Statute is set forth as: “Cases are brought before the Court, as

the case may be, either by the notification of the special agreement or by a written application

addressed to the Rapporteur. In either case the subject of the dispute and the parties shall be

indicated.” Model CJ trial proceedings are quite similar with the real International Court of

Justice. Once the jurisdiction of the Court has been established, the proceedings immediately

commence with the written proceedings and the Secretariat fixes the deadlines for the written

pleadings. Written proceedings include Memorial - Counter Memorial and evidence

submission. In our conference, advocates are expected to specify their witnesses before the

conference and inform the Secretariat as mentioned below. During the conference, oral

proceedings start with opening statements and continues pursuant to the ICJ Rules of

Procedure 2013. For further information please visit the website and download the Rules of

Procedure.

THE CASE

One of the two court simulations that we established is International Court of Justice. Last

year we had “Peru v. Chile: Maritime Boundary Dispute” and this year’s case is called

“Japan v. Russia at Northern Territories/Kuril Islands”. It is a border dispute which does not

only stand as a legal case but it also has political and historical aspects. The case requires at

least basic knowledge of International Public Law in order to participate because it is mostly

about territorial dispute, however, it also involves Law of the Seas and maybe even Conflict

of Laws within its context concerning the people living on the islands and their status.

Furthermore knowledge on Law of the Treaties is one of the most essential fields that we will

discuss about.

Model CJ 2013 Academic Team recommends you to read the whole Study Guide and the

Model CJ Rules of Procedure of the International Court of Justice.

The preparation of the advocates and the judges will be different. This handbook will first

give the advocates the way to prepare their memorials, the flagging issues they should know

about and second, it will enlighten the trial process and the phase of verdict for judges.

Since the advocates represent a state, they should not just confine themselves with the study

guide but also do further reading to dig out the treasure to build their arguments on. They

have to follow the most recent developments about the region and the dispute to evaluate their

knowledge and strengthen their case in order to defense it better before the judges and the

counter party.

Advocates have to be aware of the fact that their arguments should be legal based and solid.

One of the duties as an advocate is to rebut the evidence of the other side apart from finding

evidences to make the state you represent win the lawsuit before the ICJ. Most importantly,

their memorials should be written in a precise and persuasive manner because when they are

well-prepared in advance and stick to their arguments, they can answer all the questions that

directed by the judges about their arguments.

Since the jurisdiction of the Court in our case is assumed as established beforehand, advocates

do not need to write about and argue it in detail. Once the proceedings have been instituted,

the Court moves onto the first phase which is called the written proceedings.

WRITTEN PROCEEDINGS

ADVOCATES

Written Proceedings starts with the submission of the Memorial of the Applicant to the

secretariat. Secretariat reviews the memorial and sends it to the Respondent who is expected

to write a counter memorial and submit it to the Secretariat before the deadlines. A memorial

is a pleading that is submitted by the Applicant which contains a statement of the relevant

facts and law and the prayer on the other hand; a counter memorial is also a pleading that is

submitted by the Respondent which contains an admission or denial of the facts which stated

in the memorial, additional facts, a statement of law in answer, (if deemed necessary)

observation the statement of law in the memorial, and lastly a prayer..

Within the same time limits and if the Court deems necessary, it may authorize the

presentation of Replies. However, in the Model Courts of Justice, the procedure of replies

will not be applied

How to Prepare Memorial/Counter- Memorial

A Memorial and a Counter- Memorial differs by the content. However, the form of pleadings

is essentially the same. Although there is not any official Memorial/Counter-Memorial form,

generally both pleadings include:

Heading

Introduction

Statement of Jurisdiction

Statement of Relevant Facts

Statement of Law (Legal Issues)

Legal Arguments

Prayer

Advocates are expected to prepare their Memorial/Counter- Memorial compatible with this

traditional form.

It may be beneficial to examine and detail abovementioned parts of the pleadings one by one

in order to make it more specific and a helpful guide for advocates;

Heading

The heading of a pleading should include the name of the case, the names of those arguing the

case with their title, the names of the advocates who submit the pleading, whether the

document is a Memorial or a Counter-Memorial. It shall be formulated as follows:

“ Northern Territory Dispute

Japan v. Russia

Applicant: Japan

Respondent: Russian Federation

On behalf of the Applicant/Respondent, the advocates: ……

Memorial of Japan/ Counter Memorial of Russian Federation”

After the applicant advocates submit their memorial to the secretariat, it is sent to the

respondent advocates to provide information for their counter memorial. Start writing your

memorials before the deadline. Remember, both parties are given the same amount of time as

a deadline to be prepared and both of the parties may consult with the Academic Team of

Model CJ 2013 if any questions occur during their memorial, evidence and witness

preparation before the conference date.

While stating the name of the dispute, it should be noticed that the Applicant’s name is always

written first, and the Respondent’s name is listed second. Since Japan is the Applicant in the

case at hand, the case should be named as “Japan v. Russia”

Introduction

Under this chapter, a brief summary of the case should be written. It is the part that parties

refer to the previous developments regarding the case such as the date and the institution of

proceedings before the Court and/or state the structure and content of their Memorial/

Counter- Memorial.

Statement of Jurisdiction

In this chapter, the grounds for jurisdiction of the Court should be clearly stated and if seems

necessary, should be explained in details.

Memorials and counter-memorials which are submitted to the ICJ include a section named

“Statement of Jurisdiction” where the Advocates argue if the Court’s jurisdiction on the case

at hand is well established pursuant to Articles 36 and 40 of the Statute of ICJ.

Respondent has two options: First one is to recognize the Court jurisdiction and expresses it

explicitly in its Counter-Memorial; second one is to raise a preliminary objection to the

Court’s jurisdiction. In this case, the Respondent needs to indicate reasons of they argue that

the Court does not have the relevant jurisdiction to consider the merits of the case at hand, by

specifying the facts and law which the objection is based.

The reason why such a section needed is: In cases which the Court has no jurisdiction on the

case, a judgment cannot be rendered on the merits of the case and such a case must be

dismissed on grounds of lack of competence before any deliberation of the Court on the

merits. Moreover, if a party to the case (usually and logically, the Respondent) decides to

pursue a defense that the Court has no jurisdiction on the case, the lack of jurisdiction should

be their only argument stipulated in their first written pleading, otherwise, arguments

presented on the merits may be considered as an implicit acceptance of the Court’s

jurisdiction on the Case. However, between the time of submissions of the first and the second

pleadings, the Court may decide it has jurisdiction on the case. Subsequently, this party has to

change their strategy and to present other arguments regarding the merits of the case, within

their second written pleading.

However, in the ICJ of Model Courts of Justice 2013, the parties will only submit one written

pleading; thus, arguing that the Court lacks competence may be problematic for the parties.

Considering this fact and for the sake of the Conference, the Secretariat decided that the

Court will be presumed as competent. Therefore the parties are not required to stipulate such

section in their written pleadings.

Statement of Facts

Facts are the events which lead to the dispute pending before the Court, that’s why, a research

through the historical, political or legal background of the dispute may be helpful to state the

relevant facts. Facts should be briefly outlined in this part of the pleading.

In its Counter-Memorial, the Respondent may admit or deny the facts which stated in the

Memorial and may add other facts to their Counter-Memorial.

While preparing the statement of facts part of the Memorial/ Counter-Memorial, the best way

is the inclusion of the facts which have relevance with the case before the court. Never forget,

the aim of a Memorial/Counter-Memorial is to persuade the Court to render its decision in

favor of the state you represent by preparing your pleadings. Although they are the objective

aspects of the case and should be stated truthfully, the parties may present by phrasing those

in an advantageous way to support their position.

Statement of Law

Advocates should specify the law and principles which they claim that those are applicable to

the case before the Court, in their Memorial/Counter-Memorial. This law and principles may

be relevant articles of international treaties and conventions, customary law, general

principles of law, precedents, works and teachings of noted international law jurists or studies

by international organizations such as the UN. Since the law that is cited in this chapter will

be the grounds of the arguments , advocates are also welcome to mention domestic law which

is related to the case, however it should be kept in mind that domestic law does not carry out

the same weight with international law, so it may be used to support the main arguments.

While preparing statement of law section, we recommend you to fully comprehend the

sources of the court to give its decision and put the claimed sources of international law set

forth in Article 38 of the Statute of the ICJ which is a part of the Charter of UN , in the best

order so that you may take attention to the applicable law to your claims. As stated in this

article, you may refer to scholarly works or previous judicial decisions which states or renders

that it is a rule of customary international law and provide their point by this way. Make sure

that you state your references and make no plagiarism in this regard.

While stating relevant law, you may choose to specify and write down the relevant articles of

the applicable international conventions and treaties in the Memorial/ Counter Memorial,

rather than citing only the name of the treaty or convention. Judges may need and/or want to

analyze the exact phrase which is stipulated in the convention or treaty, while considering oral

arguments of the advocates and rendering their decision on the case.

Memorial and Counter Memorial will be sent via e-mail to the Judges so that they can be

prepared. Copies of those will be provided to Judges right before the commencement of the

proceedings.

When deemed necessary or upon the request of the Judges, evidences which are mostly

relevant parts of treaties or conventions mentioned in the written pleadings submitted by the

advocates may be provided to Judges in print by the Academic and Organization Teams of

Model CJ at any time, to enable Judges for analyzing those instruments better and for

determining the applicable law correctly. Keep in mind that the stipulations the parties will

prepare during the proceedings also count as evidence. Further information can be found in

Rules of Procedure.

Nevertheless, the relevant law stipulated in your written pleadings will not be your only

assertion of law, since you will present such legal instruments as evidences and their relation

with your claims during the “Presentation of Evidence” phase of the oral proceedings. Hence,

do not try to cover all the law found relevant in your written pleadings; instead, concentrate

on explaining your case clearly and state the law which you find necessary to ground your

arguments persuasively.

Make sure that you are well prepared for evidence presentation and used accurate sources,

not made up ones, remember that you are expected to submit your evidences in advance

before the conference so that Academic and Organization Teams of Model CJ can print them

and make them present before the Court. In this way, Judges can be prepared and can easily

follow the references to your evidences while you are presenting those. The deadline for

“Evidence Submission” will be announced on the website of Model CJ (www.modelcj.org)

Legal Arguments

This chapter contains the legal arguments that will support your submissions. In this part,

advocates need to reflect the legal arguments of the party which they represent on the case.

While making their arguments, advocates may use the facts and the relevant law that they

cited in the “Statement of Facts” and “Statement of Law” and discuss how those apply to the

particular case.

It is the most important part of the memorial, that’s why you should be sure your arguments

are written down in a logical, understandable and accurate manner with using a

comprehensible language.

Your arguments should involve enough examination about the facts and should be based on

the legal documents; political aspect of the dispute cannot be considered as an argument

which is adequate to present to the Court. Moreover, advocates should be certain about the

arguments they have cited address all legal questions arises from the case. Make sure that you

put down in writing exactly what you want to communicate to the judge.

Prayer

In your submissions you put down what you want the Court to decide upon your case. It can

be, for example, a prohibition or a declaratory judgment.

A submission contains the request of the parties from the Court to act and decide in their

favor; parties to the case should briefly describe what conclusion they hope the Court will

reach. Applicants usually seek a declaration of the rights or duties they think exists between

disputing parties, or ask the Court to direct the Respondent to reinstate the justice. They may

ask the Court to render or a judgment that orders a compensation to be paid by the

Respondent, while Respondents requests dismissal of the case or seek counter relief against

the Applicant.

A Memorial/Counter-Memorial should be concluded with the phrase “Submitted

respectfully”. It shall be formulated as follows:

“Submitted respectfully

by the advocates of the Government of … (fill in the blanks with your country)

(Name of Advocate) (Name of other Advocate)”

While preparing their written pleadings, advocates should keep in mind that the main aim of

these pleading is to persuade the Court to decide in their favor; however there will be oral

proceedings in which you present your arguments in a more detailed way. In this regard, a

concise pleading will be enough to underlie your position. Remember, when you write your

written pleadings with unnecessary extensions, it will not help you nor justify your claims.

Significant Issues for Advocates

Written proceeding is completed beforehand and followed by the oral proceedings--which

will take place during the Conference.. Other than the written proceedings, there are certain

things that you should do before the date of the Conference. as it is stated and governed by the

Rules of Procedure specifically stipulated for International Court of Justice not only the

written proceedings, but also the processes of evidences and witness submission start before

the Conference,. In this regard, Academic Team recommends you to pay extra attention to

following points:

At the first day of the Conference, you will be giving a procedural briefing regarding

the rules which will be following during the Conference; however, reading and

analyzing the Rules of Procedure beforehand and trying to comprehend the structure,

the nature and the way how the Court proceeds will be of benefit to you. While doing

so, should you have any question, please do not hesitate to ask to our Secretariat via e-

mail.

As it is implied above, you are obliged to submit your evidences beforehand. The

Secretariat will determine a deadline for the “Evidence Submission” an announce it on

the website. We strongly advise you to check our website on daily basis to obtain the

information regarding the deadline.

In addition to the written evidence advocates submit to the secretariat and present

before the Court, they are also entitled to bring two witnesses and question them

during the Witness Questioning phase. Witness testimonies are also considered and

treated as evidence. In order to do so, you should conduct a research and select a real

person who witnessed the event or process of a certain aspect or time period

concerning the case. (As an example, advocates of Japan may choose to bring former

Prime Minister of Japan who signed the San Francisco Peace Treaty and question him

about the atmosphere of the time when the Treaty was concluded to point out and

convince the Judges that Japan was not forfeit its alleged rights on the Islands. In the

meantime, advocates of Russian Federation may bring Former Deputy of Foreign

Minister who represented USSR in the San Francisco Conference, as a witness to

rebut Japan’s claims.)

After determining such a person, you should inform the Secretariat about the witnesses

you want to bring with stating their names and their positions and their relation to the

case In a nutshell, you should submit your witnesses beforehand. Deadline for

“Witness Submission” will be announced by the Secretariat. Then the Secretariat will

appoint someone from the Model CJ team as the witness you need and give you the

contact information of that person so that you will be able to inform and prepare this

person for his/her testimony.

ICJ JUDGES

The difficult part for the judges is not the preparation but the processing of the case.

Academic Team advises judges to keep an equal distance to the advocate parties during the

proceedings not to compromise their reliability and neutrality. Judges are expected be open-

minded and impartial. They shall not have positive or negative opinions beforehand neither of

the advocates nor of the case itself. They are also not allowed to give any information to the

advocates about the process while still discussing and composing their decision. Judges have

to listen to the advocates very carefully and examine their memorials in order to ask the right

questions which will lead us to the best possible solution of the case.

Before the conference the only preparation judges can do is to study the case via the Study

Guides. Study Guides are written in the best possible impartiality and they also show you the

references where you can do further reading when needed. However, you should not come to

the conference with a strong pre-opinion about the case, so as to be open-minded and on a

persuadable attitude during the conference. The matter you should not appease is the

applicable law.

As stated in the Statute of the ICJ/Article 38-1, the Court shall apply:

a. international conventions, whether general or particular, establishing rules expressly

recognized by the contesting states;

b. international custom, as evidence of a general practice accepted as law;

c. the general principles of law recognized by civilized nations;

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,

in accordance with the international law.

You should read the International Court of Justice Statute in the UN Charter in order to be

well informed and equipped and we advise you to do some further reading on the Public

International Law, Maritime Law and maybe specifically on International Law concerning

Islands. Knowledge on these is necessary if you want to find a solution to the dispute and true

application of your knowledge will give you advantage also make a more fruitful debate. You

may want to go through some doctrine and judicial opinions as well. Such knowledge may

enable you to interpret the provided evidence and sources of law better and may be helpful for

further understanding of the case. At the same time, it may provide you the necessary

knowledge and perspective to decide on the case where the abovementioned three could not

be applied; however, we strongly emphasize the fact that you must be impartial and fair.

Besides, you shall follow the order of the sources and go through every detail that is in front

of you.

Heed the advocates and question them. When they are open to the questions it is your only

chance to comprehend and evaluate the case and their arguments better and decide

accordingly. This point is just as desired during the witnesses’ questioning. Evidences will be

given to you to inspect, try to ask incisive questions which will indicate to you whether the

evidence is credible and accurate or not.

How to Prepare a Verdict

The form of the Verdict used in Model CJ Conference includes:

Heading

Introduction

Jurisdiction of the Court

Statement of Relevant Facts

Questions Raised

Evaluation of Claims

Applicable law

Decision

Judges are expected to prepare their decision on the case in compliance with this traditional

form.

To be more specific and guide the judges better, it may be beneficial to examine and detail

abovementioned parts of the verdict one by one;

Heading

The heading of a verdict shall be formulated as follows:

“Date of the judgment

JUDGMENT

INTERNATIONAL COURT OF JUSTICE

NORTHERN TERRITORY/KURIL ISLANDS DISPUTE

(JAPAN v. RUSSIA)

Parties and the Submission

In case concerning the land and maritime border dispute

between

Japan,

represented by the agents

(names of the advocates)

and

Russia,

represented by the agents

(names of the advocates)

Introduction

Under this chapter, a brief summary of the case and dispute should be written, previous

developments regarding the case such as the date and the institution of proceedings before the

Court should be mentioned. Furthermore, the legal issues relevant to the case such as some

general principles and sovereignty issues of both parties, regulations and main treaties may be

mentioned.

At the end, if the claim is admissible, it should be depicted. Since it is an island dispute, brief

information about the disputed islands or territory should be given and the applicable law and

method of resolution to the case should be specified. Judges do not need to extend the

introduction because in the further chapters, they will give detailed information under related

parts.

Jurisdiction of the Court

In this chapter, the grounds for jurisdiction of the Court for this specific case should be clearly

stated and if deem necessary, also explained.

Statement of the facts

The facts about the case and the dispute should be explained here. Remember, the facts

according to the parties may be mentioned in their written and oral submission and be found

convincing however, the Court may find further facts or have interpretations on submitted

facts whether such facts are relevant to the case at hand or are to be recognized as the

reflection of the “truth” by the Court, if so, those should also be pointed out and explained.

If there was a stipulation made by the state parties during the stipulation phase, judges need to

specify it in their verdicts, so as to read:

“The Stipulation concluded by the parties of the dispute on 16.02.2013 reads as;”

The geography of the region may be explained with the location of the disputed lands/islands,

descriptions, historical background and their relation to the disputed states. The islands should

be subject to review one by one under the sub clauses.

Position taken by third States may be mentioned as long as it is related to the dispute.

Accepted evidence by the Court may also be named here since it is considered to reflect or

point out the truth. Evidentiary value of maps may be examined. If the court has reached to a

conclusion as to sovereignty over the islands, they should write it to the conclusion part

however they can here state the tangible information regarding to the case and therefore

establish the ground for their sentence.

The Questions Raised

This chapter follows the facts because it is the part where the demands, specifically claims of

the parties are examined and evaluated so as to ground the final verdict of the Court by

underlining the reasons of why the Court reached such a verdict.

Judges should list the claims of the parties in a logical and/or chronological order, while

evaluating each one of them separately and juristically. They should then briefly state the

reasons of accepting or denying the submission of such parties’ claim. While doing so, they

may specify some court decisions, treaties etc., by “recalling” them. After you are done with

the claim of one party, you may consider other party’s claims in the same manner, by using

phrases such as “the Court now turns to the question whether…”

Since the legal grounds are crucially important for your decision, the court must determine the

applicable law. You are expected to write them down under asub-clause, namely “Applicable

Law”. Every related issue, especially the applicability of international customary law, the

international bi/multilateral treaties, if so, whether the parties are part of the treaty or not,

shall be expressed. The parties may agree on some points, if so, it should be specified as well.

The Court should then turn to the methodology to be implied in effecting the delimitation.

Judges may also mention precedence or the legal grounds alike. Then Judges should write

down the solution they find for the dispute. If the parties invoke several different

considerations which they found relevant to the achievement of an equitable solution, the

Court examines each of the considerations invoked by the Parties in turn and states if in the

Court’s opinion, an equitable result is achieved. The Court may illustrate maps if needed any.

Judges may also refer to the previous judgments of the court. Referrals are preferred to be

detailed such as the number, the date of the previous verdict etc. However if the detailes are

not known, mere names can also be referredwhen content is considered accurate.

Decision

Before the mere decision part, judges may specify a brief form of the decision/s such as “X’s

request for a declaration”. Here they need to indicate the observations and the core of their

discussion in paragraphs. This part can be in detail and continue with the phrase “the Court

considers that” followed by an explanation hereby.

After the court comes to a conclusion, they need a phrase before stating the decision such as

“The Court concludes that,” should be written at the beginning of the main decision as a

commencement phrase and the rest of the decision should be clear, precise and expected to be

a whole sentence. If there is more than one decision, any other one should also be in the same

format except the beginning since it is sort of an oppositional decision to the first.

The final decision shall be in its traditional format (the content below is just an example and

should not be directly copied):

“For these reasons,

THE COURT,

1. Unanimously,

Finds that

2. By thirteen votes to two,

Finds

IN FAVOUR: (name of the judges)

AGAINST: (name of the judges)

3. Unanimously,

Decides

4. Unanimously,

Rejects

Respectively. (Signed)(name of the judges and title if the presidents involved)

(Signed) (name of the judges)

Rapporteur.

Judge A appends a dissenting opinion to the Judgment of the Court;

(Initialled) P. T.

Judge B appends a concurring opinion;

(Initialled) P. T.”

Dissenting and Concurring Opinions

The dissenting opinion which isthe opinion written by the judge or judges who voted against

the verdict and disagrees with the Court's disposition of the case

The concurring opinion which is opinion written by one or more judges of a court which

agrees with the decision made by the majority of the court, therefore initially voted in favor of

the verdict but states different reasons than the ones that verdict includes, as the basis for his

or her decision.

Dissenting and concurring opinions should be added at the end of the verdict, respectively.