International Championship Rounds

Date: March 11-14, 2010
Location: Stetson University College of Law, Gulfport, Florida
Competitors: Teams in more than 80 countries
Compromis: “Case Concerning Beaked Whales and Marine Seismic Surveys”

The 14th Annual International Environmental Moot Court Competition (IEMCC) concluded yesterday with the Law Society of Ireland, Cork as Applicant facing the University of Maryland School of Law as Respondent. This year’s simulated case before the International Court of Justice focused on “Beaked Whales and Marine Seismic Surveys.” Student attorneys made arguments under the Espoo Convention, the UN Convention on the Law of the Sea, the Convention on Biological Diversity, and the duty to prevent transboundary harm under customary international law. More than 80 teams competed worldwide with 19 teams advancing to the international finals in Florida.

I served as one of the judges for the International Rounds. Congratulations to all the competitors. I encourage you to consider writing a full journal article based on the themes or conventions of this competition. See Call for Papers.

International Finals Champion

University of Maryland School of Law
The team consisted of William Tilburg (second year J.D.), Molly Knoll (second year J.D.), and April Morton (second year J.D.). During the International Rounds, Team 1021 — as they were known to Judges — beat teams from Ukraine, India, Brazil, and the United States. A successful re-match against China University of Political Science and Law secured their spot in the final round. The Chinese team was the only team to beat Maryland and was comprised of students taught in 2008 by University of Maryland Environmental Law Program Director Robert Percival.

In Regional Rounds, the University of Maryland School of Law team competed in the Pacific Regional Rounds at Chapman University School of Law in Los Angeles because their school hosted the Atlantic Regional Rounds. They defeated Southwestern and UC-Hastings.

Coaches: Adjunct Professors David Mandell and Karla Schaffer.

International Finals Runner-up

Law Society of Ireland, Cork

International Finals Semifinalists

China University of Political Science and Law v. University of Maryland School of Law
Law Society of Ireland, Cork v. Law Society of Ireland, Dublin

Best Memorials (Briefs)

Best memorial: Ateneo De Manila University, Philippines (Team 1033)
Runner-up memorial: University of Maryland School of Law (Team 1021)
Third place memorial: Wake Forest University School of Law (Team 1026)
Fourth place memorial: University of California, Hastings College of Law (Team 1020)

Best Oralist

Molly Knoll (second year J.D.), University of Maryland School of Law (Team 1021)

Brief Summary of the Problem

* For the complete timeline and details, see the Record (Compromis) and clarifications.

The coastal country of the Kingdom of Aduncus, as Applicant, brings suit against the neighboring Republic of Mersenne, as Respondent, for its failure to conduct an environmental impact assessment for seismic studies performed by its state-owned power company in the Sedna sea. Aduncus is a developing country heavily reliant on tourism, water-based recreation, and whale tours. Its Marine Protected Area borders Mersenne’s exclusive economic zone (EEZ) and comprises half of Aduncus’ EEZ. Mersenne is a developed country facing domestic energy shortages, high unemployment, and the impacts of the global economic crisis. Mersenne’s government authorized a state-owned energy company to explore for oil and gas using seismic surveys within Mersenne’s EEZ.

After seismic surveys began, a stranding of whales occurred within Mersenne’s EEZ yet 12 km from Aduncus’ Marine Protect Area. After which, the energy company implemented whale spotters on seismic survey vessels and the “ramping up” of the seismic equipment, a gradual increase of the equipment over a period of time. This gradual increase of underwater noise and mechanical energy propagation is intended to give the whales an opportunity to leave and to avoid the area. Aduncus asserted that these mitigation measures were insufficient to protect the whales and called upon Mersenee to conduct an Environmental Impact Assessment (EIA). Diplomatic exchanges failed to resolve the dispute over whether an EIA is required.

Pursuant to the Espoo Convention, the parties submitted the dispute to a 3-member inquiry commission, which investigated and advised the parties on the likelihood of significant transboundary harm. The inquiry commission’s findings, however, were inconclusive with one member finding insufficient likelihood of harm; one member finding sufficient likelihood of harm; and one member concluding that, even if there may have been harm, Mersenne’s mitigation measures likely would prevent future significant harm. As the parties were at an impasse and unable to reach a suitable diplomatic resolution, they agreed to adjudicate the dispute before the International Court of Justice.

Highlights from the Championship Round

* I watched the final round by live webcast, which showed the agents but not the bench. The webcast started during the first agent’s summary of her legal arguments. Emphasis is used to highlight important concepts, common pitfalls, and tips.

Summary

The “conversation” with the bench was lively, difficult, and challenging for the student attorneys (referred to as “agents” here). The judges probed the agents’ understandings of facts, law, and policy.
The judges mercilessly hammered the agents on particular legal and policy details, making it a significant challenge for the agents to advance their core legal arguments.

The agents faced questions on standing, procedural issues, definitional distinctions, the substantive impacts of their advocacy positions, and the types of remedies sought. Because the problem dealt with multiple conventions that were legally binding upon both parties, the judges explored the relationship of treaty interpretation across several international legal instruments and their respective authoritative bodies. As is common with moot court problems, the Record was also written such that agents could inadvertently pursue inconsistent arguments across multiple legal claims. Accordingly, the judges were quick to pounce on every weakness, or even hint of weakness, in the arguments.

Common Moot Court Questions:

Why do the parties have standing before the Court?
Who has the burden of proof?
What remedy are you seeking?
Are your claims dependent on each other? If the Court rules against you on Claim 1, will you lose on Claim 2?
What is the legal standard? If you rely on multiple legal grounds, what is the legal standard for each and how do they vary?
How do the various provisions within a treaty relate to each other?
Are the treaties and its provisions binding upon the parties?
What should the role of the Court be in relation to other international institutions and authorities?
How should the court resolve translation issues?
How is your argument consistent with your co-agent’s arguments?
Tip: Prioritize your arguments and make your points as succinctly as you can early in your oral presentation. That way, the bench can quiz you about your various arguments.

First Agent for the Applicant

The first agent was quizzed on standing, procedural issues, remedies sought, and the relationship between the inquiry commission and the ICJ.

She was in the middle of outlining her core legal arguments on why an EIA is required when the bench interrupted to ask her to justify why the parties were before the court. The judge first asked: “Do you want this court to order Mersenne to prepare an EIA?” The Agent responded that the Court should “declare that an EIA should be prepared and that Mersenne is in breach of its international law obligations.” Next, the judge created a premise for the agent to accept: “So, I think your answer is ‘yes’?” The Agent did not respond with a clear yes or no; rather, she responded that “the Court is empowered to consider treaties under (ICJ Statute) Article 38 and apply a declaration that . . . .” The judge interrupted. He was looking for an answer on what specific remedy was sought.
As such, the judge further pushed for a definitive ‘yes’ or ‘no’ answer to the question: “Do you want this court — whether or not you can order us — would you like this court — to order Mersenne to prepare an EIA?” The agent answered “No, Your Excellency, I would like this Court to order that Mersenne should prepare an EIA.” (emphasis added).

This prompted another judge to question whether this difference is “trifle.” The judge noted that the parties have already participated in diplomatic exchanges and the inquiry commission. The parties would still be in the same position, and Mersenne would still be using the same mitigation measures. Thus, he wanted to know, “Who cares? Why are we here?”

The agent responded that a decision by the ICJ would give Aduncus “greater standing” in the matter. Essentially, the agent misused the legal term of ‘standing’ to her peril. Standing has a specific legal meaning and refers to when cases may be brought before the Court. Here, the agent implied that the parties brought the matter before the Court such that Aduncus could gain greater political leverage over Mersenne. The agent’s use of this legal term to confer political weight rather than legal obligations created an opening for the judge to grill the agent further: “Why would you have greater standing?” He then offered a hint: “Espoo says that it is procedural. You have to go through it, but you don’t have to take any substantive measures at the end of the day . . . . What more does this Court’s imprimatur give you?”

The questioning then turned to the findings of the inquiry commission. “What additional changes would you get from the EIA process?” The agent asserted that there were still unknown consequences. The third judge posed the hypothetical of a properly conducted EIA; if that EIA would conclude that there is no significant adverse impacts from the seismic surveys, would you be satisfied? The agent replied, “No, Your Excellency” and proceeded to explain that Mersenne was in breach of its international legal obligations. She asserted: “Further steps would need to be taken.” The agent then identified the breaches of articles under Espoo. The judges prompted her to expand her argument to the other treaty breaches. She correctly identified breaches under the UN Convention on the Law of the Sea (UNCLOS) and the Convention on Biological Diversity (CBD). Again, however, the agent failed to identify clearly what specific remedy was sought and for what reason.

The bench turned to the role of the Court in relation to the inquiry commission and the standard of review. The questioning reflected the following themes: Should the ICJ defer to the findings of the inquiry commission? Should the ICJ serve as an appellate body? What are you asking the court to do – review the facts? Since the Judges are not cetacean experts, shouldn’t the Court defer to the scientific authorities? Is the Court to rely on the existing facts? Is the Court to consider the case de novo and decide anew as if commission did not exist? The agent responded de novo and then impliedly questioned the reliability of the experts, saying the Record is silent on their qualifications. She also added that additional scientific evidence supports the likelihood of significant harm to the whales. The bench questioned whether this assertion is supported by the Record. The Agent cited paragraph 24 but was cut off by subsequent questions about the whale stranding and causation.

The court switched to the due diligence standard, questioning the agent on whether the standard does, or does not, require a showing of any environmental harm. The judges then questioned the distinction between sonar and seismic surveys and the implications of the Court’s reliance on examples of whale strandings due to those activities to adjudicate the current issue.

Just as the agent finally mentioned the Precautionary Principle, the judge immediately cut her off and asked whether the court is to do fact finding. He asked if she brought witnesses to support her claim. Essentially, he was asking if this should be treated more like a civil case in a domestic court, and, if not, what does the Applicant seek from the ICJ? Is this dispute constrained only to the facts in the Record? The agent referred to the prior ICJ case of Gabcikovo-Nagymaros Project, Hungary v. Slovakia (applying Article 62), noting that the Court previously considered scientific evidence. Satisfied, the judge then quickly turned to what standard to apply to the evidence.

The agent began to explain, saw that she was about to be interrupted, and asked, “May I finish this point” — and kept speaking. Be very cautious about presuming that the Court will allow you to proceed. It can be seen as disrespectful to the Court.

She asserted that the evidentiary standard of “due diligence” is to be applied to determine whether an EIA should be conducted. She then asserted that the same “due diligence” standard is applied under all three conventions: the Espoo Convention, UNCLOS, and the CBD. At this point, all the judges seemed to begin speaking, which is generally a sign that you said something incorrect. The agent further asserted that the due diligence standard under these Conventions requires Mersenne to look at “proportionate and appropriate methods.” At this point, she ran out of time, thanked the bench, and returned to her seat.

If you were wondering where the bench was going, see Article 2.9 of the Espoo Convention, which recognizes that other multilateral agreements may impose stricter measures for EIAs. Also, consider the difference between the language of UNCLOS Article 206, which includes “reasonable grounds for believing,” and CBD Article 14, which uses “as far as possible and as appropriate” in regards to “Impact Assessment and Minimizing Adverse Impacts.” Consider whether all three treaties and/or customary international law impose the same standard or legal threshold for when an EIA should be conducted. Are there varying standards and differing levels of implementation and enforcement under the various international legal instruments? Is there a different standard under the duty to prevent transboundary harm? Are the various terms and interpretations creating clarity in terms of legal obligations by States? Does this create uncertain legal rights when it comes to enforcement for noncompliance?

At one point, mid-way through, a judge instructed the agent not to use, “Your Excellency,” at the start of every response. Perhaps out of habit, she immediately answered his question: “Yes, Your Excellency.” The use of “Your Excellency” should be limited to your introduction, the beginning of your rebuttal/re-rebuttal, and, at most, a few times during your responses. One good rule of thumb is to avoid beginning every response with the same words or phrases. You likely will not get many words before the bench interrupts — use each word wisely to succinctly advance your argument.

Second Agent for the Applicant

The second agent, Lindsey Clark, introduced herself and the two arguments she would address: (a) transboundary harm, and (b) the doctrine of necessity. She ran out of time while discussing the first claim and never addressed the argument under the doctrine of necessity. Further, the summary of her argument came at the conclusion of her time.

She began with a legal conclusion: “The Respondent has caused substantial transboundary environmental harm through its acoustic pollution.” This prompted the bench to immediately challenge the agent with the question: “On what basis, do we make that conclusion? The inquiry commission said 2 to 1 that is not true.” The agent replied that 2 out of the 3 concluded that harm occurred. Here, the agents for Aduncus could be seen as intentionally misleading the Court on the findings of the inquiry commission. Only 1 member of the commission concluded that there was harm; the other member said that there may have been harm. The judge then further observed that 2 of the members have found no current harm is occurring. Yet, the agent argued that the harm is “to the present” and that “the mitigation measures are insufficient.”

The judges walked through the same questions on the relationship of the inquiry commission to the Court, the deference that should be given to treaty interpretation mechanisms set up by a treaty, and the standard of review.

The judge probed whether asking the ICJ to decide the matter is undercutting the Espoo Convention and its inquiry commission. Here, the judge was exploring the role of the Court when a treaty creates an advisory commission that is comprised of experts in the field and empowered with treaty interpretation. He observed that, when the party doesn’t like the outcome, it says: “‘Screw you, we’re going to the ICJ.'” He asked, “Doesn’t that really undercut the integrity? From a policy perspective, is that where we should be headed?” The agent aptly highlighted how multiple treaties are involved and how the inquiry commission was not the competent body to rule on the other treaties. The agent did not identify that the inquiry commission is solely advisory and does not require the parties to take substantive action.

Next, the judge asked about the substantive standards and duties. He specifically wanted to know which treaty articles were breached and how they were breached. Here, the judge was trying to be helpful by allowing the agent to transition to the strongest legal arguments. Tip: When offered such an opportunity, quickly summarize the legal highlights. This is where a notecard with your core legal arguments comes in handy. Include on the card your essential arguments — usually your headings and point headings. Also include what specific remedy you seek for each breach or violation.

Rather than identify treaties or principles of customary international law, the agent speculated facts and argued that the current situation requires additional mitigation measures, despite the findings of the scientific inquiry commission. So, the judges naturally asked what additional measures would be required. The result was much time spent on speculation. The agent asserted that more passive measures could be taken, but she did not articulate how Aduncus knew that. She next questioned the adequacy of the whale spotters aboard vessels — stating that Aduncus did not know if they were government employees, private employees, whether they were scientists, whether they had any special training, etc. Her argument implied that Aduncus’ main reason for adjudicating the matter was for the Court to instruct Mersenne to implement additional mitigation measures and better training of the whale spotters, as based on Aduncus’ perceptions of what should be done. Although there was a legal argument underlying the speculation, it was not articulated. Beware of an argument that relies heavily on speculation.

To bring her back to law, the judge asked about specific language in the treaty. Again, he was trying to be helpful. He specifically asked about the relationship of different wording in UNCLOS Articles 192 and 194. He asked her to describe what specifically is protected, whether “marine environment” is defined, and who defines what constitutes “marine environment.” Is it the parties? (lost the audio for a little while).

She then turned to the Precautionary Principle, mentioning the CBD and the Rio Declaration. This prompted rapid fire questions from the bench: What constitutes the Precautionary Principle? Where is the opinio juris evidence? Is the Precautionary Principle truly a recognized principle of customary international law? Her answer focused on domestic examples (i.e. U.K., India, EU). She did not immediately demonstrate that she understood the legal elements and requisite evidence to show when a principle has become binding under international law. The judge reminded the agent that part of the test is whether a state’s conduct derives from a sense of legal obligation under international law, not just that it decides to engage in the conduct. One judge offered a hint, to which the agent responded affirmatively that evidence of the Precautionary Principle appears in the Rio Declaration.

The judges then quizzed her on the United Nations Framework Convention on Climate Change and the absence of its endorsement by the United States. Does the absence of participation by a major State negate the establishment of a principle of customary international law “in the real world”? Essentially, does opinio juris require, at minimum, the participation of the major countries, particularly the countries engaged in a specific action? Do some States matter more than others? How does this reconcile with prior ICJ decisions?

Changing subjects, the judge asked the agent about Article 14 under the Convention on Biological Diversity (CBD): “imminent or grave danger or damage, originating under its
jurisdiction or control, to biological diversity within the area under jurisdiction of
other States.” He specifically asked her to describe difference between the terms “damage” and “danger” and to identify upon which term Aduncus relies for its legal argument. The agent distinguished the terms and asserted that Aduncus would rely upon both.

The judges prompted her to provide a summary of her arguments. She outlined her argument under her first point and ran out of time. Thus, she never reached the doctrine of necessity and why Mersenne should not be allowed to rely upon it.

Respondent

The co-agents for the Respondent listened intently to their competitors. At times, they smiled, nodded, and seemed to jot a few quick notes. They appeared confident. Then, their turn before the bench began.

First Agent for the Respondent

The first agent, William Tilbur, approached the lectern. One judge tried to shake the agent’s confidence and knock him off his game early. The agent introduced himself and his co-agent and was mid-sentence when the judge interrupted — speaking in French, “Do you speak French?” and then in Russian, “Do you speak Russian.” A momentary look of confusion spread across the agent’s face. The agent responded, “No, Your Excellency.” The judge then asked if the agent knew how many official versions of the Espoo Convention currently exist. The agent replied, “One.” The answer the judge was searching for was “three”: English, French, and Russian. The agent made a good recovery in affirming that all three language versions are official.

Unknown to the agent, there is a critical translation difference in the wording of Appendix I. The English version says “likely”; the Russian version says “maybe / possible”; the French version says “susceptible.” The judge then asked, “Which one should we use?” As was previously asked to the second agent for the Applicant, the judge asked, “Who should decide?” The agent replied the English version. In doing so, he overlooked the legal and policy implications for future decisions. The judge pointed out that following the agent’s suggestion would mean different treaty interpretations and, impliedly, inconsistent justice delivered by the World Court. The line of questioning continued, asking which authority should make the decision. The agent recommended allowing the International Law Commission (ILC) to decide. He then argued that the inquiry commission already relied upon the English interpretation. There was no mention of the travaux.

The difficult questions continued. The judge asked about whether an EIA should have been performed at the outset under Espoo. The agent began to argue two points: seismic surveys under Appendix I and . . . he didn’t reach the second point. This further illustrates the need to make every word count, particularly when the bench frequently interrupts. The interruption was to question whether seismic surveys do qualify under Appendix I and mandate an EIA. Here, the judge gave leading questions for the agent to cite Appendix II for treaty interpretation, but the agent didn’t rise to it. Instead, the agent relied on a balancing of economic and environmental harms. This prompted additional questions on when an EIA should be done and pushing the agent to concede pre-production of oil and gas extraction falls under Appendix I — or to make a good recovery.

Next, the bench got aggressive. At this point, the agent unwisely responded by raising his voice and increasing his use of the term, “Your Excellency.” The judges raised their voices. The subsequent ‘argument’ with — and from — the bench consumed 1/3 of the agent’s time (5 minutes 30 seconds). The discussion focused on the legal standard, mitigation measures, and the role of scientific certainty.

Having successfully raised the agent’s ire, the bench backed off in vocal tone and returned to the legal aspects of Espoo. The judges gave leading questions on mitigation measures under the appendices. They then asked about a due diligence requirement, got the agent to concede, and pointed out a potential inconsistency in the agent’s argument. The agent again responded by raising his voice.

The judge used a quiet and calm voice to ask about the plan to explore for oil and gas, the difference between exploration versus production, and the role of a plan. Yet, the agent had less than 1 minute to conclude.

The agent put forth the summary of his argument, thanked the court, and returned to his chair.

Second Agent for the Respondent

The second agent, Molly Knoll, literally was leaning away from the lectern during the remaining minutes of her co-agent’s discussion with the bench. She approached the bench, introduced herself and, like her co-agent, was mid-sentence when the bench interrupted: “Can you move to the substantive argument, please.” Specifically, the judge wanted her to address the doctrine of necessity. In this regard, this agent had one single area of law as compared to the other agents, who dealt with multiple treaties and principles of customary international law. The doctrine of necessity may be relied upon to excuse noncompliance with an international obligation if the State had no other means of safeguarding one of its essential interests, which is threatened by a grave and imminent peril, and only insofar that an essential interest of another state is not impaired. The agent moved quickly and succinctly to summarize her legal point on why Mersenne is justified in its breach under the doctrine of necessity due to energy independence and economic recovery as essential state interests. She was challenged on whether the global financial crisis would have decreased the domestic energy demand and thus negate the argument that Mersenne needed more oil and gas. Another judge quizzed her on whether developed and developing countries have different standards for protecting the environment in relation to economic development. She cited and distinguished the ICJ case of Gabcikovo-Nagymaros Project, Hungary v. Slovakia, which applied VCLT Article 62 and identified 5 requisite elements of the doctrine of necessity.

Here, the bench again got aggressive, presumably to throw her off balance, by frequently interrupting her before she was able to deliver her argument, changing the subject, attacking her knowledge, asking her about domestic statutes, and making vague references to language from other treaties. Specifically, multiple questions asked her to defend why noise is not pollution and not energy under UNCLOS. One judge then stated, “Do we have a statute in the United States with the word ‘noise’ and what’s the word that follows it?” When the agent didn’t immediately reply, he answered his own question: “Pollution.” The agent said she would respond with two points but was cut off by a question on mitigation measures. She followed the new line of questioning. Another switch in questioning was thrown at her about her knowledge of cetaceans. She remained relatively calm and chose her words carefully.

The remaining 8 minutes of her time was spent answering questions about arguments previously raised by the other agents and the bench. It is unusual for the bench to quiz one agent on all arguments; you can expect the bench to ask questions on the consistency of the arguments across your party’s claims, as well as your response to the counterarguments.

The bench revisited the Espoo Convention and UNCLOS Article 206. She then conceded that sonar noise causes harm to whales, which would impose an EIA requirement. Yet, because seismic surveys do not have that same certainty, no EIA would be required. This prompted one judge to express that he didn’t understand her distinctions of ‘certainty.’ She clarified that an EIA is required when harm is certain but not when the harm is uncertain. A judge responded that this approach seems to “fly in the face” of Espoo: “Isn’t that why we do the assessment, to determine whether it would be harmful?” The agent identified Appendices I and III. A judge interrupted to raise the idea of looking at the travaux. The agent argued in favor of the International Law Commission’s use of “risk versus circumstance.” The judge embraced the response as bringing the discussion into the realm of “potentiality.”

The argument ended by asking the agent to consider whether treaties dealing with whales should be considered when interrupting and applying the term “noise” in context of Espoo. She rejected the idea on the basis that the Espoo Convention is self-contained and the parties did not agree to an expanded definition. A judge pointed out that she previously admitted to not looking at the travaux and would not know the accuracy of her statement.

With less than 60 seconds remaining, a judge asked her to imagine a blind person walking toward a street. He asked her whether she would stop and listen for noise or walk straight forward.

She quickly responded that Mersenee’s conduct was consistent with the Precautionary Principle and then acknowledged to the Court that she was out of time. She asked for additional time to answer a prior question. She ended strong with a 20-second distinction of how energy and noise are treated under UNCLOS; she stated that the parties’ intent was to limit energy to “radioactivity” and “thermonuclear,” not noise.

Rebuttal – Re-Rebuttal

The first agent delivered the rebuttal. She highlighted the failure of Mersenne to abide by its obligations under the various international law obligations that she said were previously discussed. She specifically highlighted Espoo Articles 19-22. She then cited examples of other strandings of whales. The agent concluded by asking the Court “to declare that EIA should be prepared here and that the Respondent is in breach of their international law obligations.”

There was no surrebuttal. As a friendly reminder, the surrebuttal is limited only to those points raised by the Applicant during rebuttal.

15th Annual International Environmental Moot Court Competition

Next year’s international rounds will be hosted by the University of Maryland School of Law in Baltimore, Maryland, which is located north of Washington, D.C.

Resources

14th Annual International Environmental Moot Court Competition

Additional Resources on Inside Justice

Research on Treaties