In this knowledge clip, Otto Spijkers will give you some tips on how to successfully plead a case before a moot court. In this first clip, the focus is on preparations. In the next clip to be published later, mr Spijkers will focus on the delivery of the oral pleadings themselves.
Select your sources carefully while preparing for a moot court. All your arguments must be based on sources of international law – i.e. customary norms, treaty provisions, and/or general principles – binding on the States involved in the dispute. Normally, the provisions of a treaty do not bind a State in relation to any act or fact which took place before the entry into force of that treaty for that State. To support your interpretation of the sources, you may refer to the caselaw of international courts and tribunals, to United Nations General Assembly or United Nations Security Council resolutions, to influential United Nations reports (such as the Brundtland report and its definition of sustainable development), to Articles with commentaries adopted by the International Law Commission (such as the Articles on State Responsibility of 2001), and so on. These are not themselves sources of international law, but they can be used as subsidiary means for the determination of rules of law.
Preparing Moot Court: Using Scholarly Literature, Conventions and Case-Law
Do not refer too much to scholarly literature, as judges tend to be unimpressed (they say: “why should we listen this or that scholar?”). In the old days, scholars had a profound impact on international law – think of Hugo Grotius – but that is no longer the case. You can only use sources that are authoritative to the Court before which you plead. Some courts or tribunals are only allowed to settle disputes concerning the interpretation or application of a particular Convention, such as the Law of the Sea Convention. If this is the case, then all your arguments must be based on provisions in that Convention. The principle by which judges are bound to their own precedents is known as stare decisis (a Latin phrase that literally means, “Let the decision stand”). There is no such rule in international law. International courts and tribunals are formally not bound by their own previous decisions, but in practice they do not like to diverge from their own case law. It is thus a good idea to remind the Court of its own previous decisions in similar cases - if that works to your advantage - or to explain why that previous case is different from the present case.
The video also has some tips on how to practice and prepare your notes. Find the video, here: https://youtu.be/_Ce5A8IEeJA
Mr Otto Spijkers is University Lecturer of Public International Law at Utrecht University School of Law, Senior Research Associate with the Netherlands Institute for the Law of the Sea (NILOS), and with the Utrecht Centre for Water, Oceans and Sustainability Law (UCWOSL)