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-Mooting Cheat Sheet-

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I. PRELIMINARIES ........................................................................................... 1
A. CONDUCT BEFORE THE TRIBUNAL .................................................................... 1
1. Entry of Appearance ...................................................................... 1
2. Beginning Your Speech ................................................................... 2
3. Ending Your Speech........................................................................ 2
4. Rebuttal .......................................................................................... 3
B. BASIC FOOTNOTING ...................................................................................... 3
1. Books .............................................................................................. 3
2. International Materials .................................................................. 4
II. BASIC PUBLIC INTERNATIONAL LAW (PIL) .................................................. 6
A. DEFINITION OF INTERNATIONAL LAW ............................................................... 6
B. INTERNATIONAL HUMANITARIAN LAW V. INTERNATIONAL HUMAN RIGHTS LAW ...... 6
C. SOURCES OF LAW (INTERNATIONAL OBLIGATIONS) ............................................. 7
1. Limitation or Disregard for the enumeration under Art. 38 of the
Statute of the ICJ ........................................................................................ 7
2. Hierarchy of the Sources ................................................................ 7
3. International Conventions (Treaties) ............................................. 7
4. Custom ........................................................................................... 8
5. General Principles of International Law ....................................... 10
6. Judicial Decisions and Teachings of Highly Qualified Publicists ... 10
7. The Role of the International Courts of Justice (ICJ) .................... 12
D. COMMON TERMS .................................................................................. 12
1. Peremptory Norm ........................................................................ 12
2. Jus Cogens .................................................................................... 13
3. Erga Omnes Obligations ............................................................... 13
4. Unilateral Declaration .................................................................. 13
E. BASIC PIL PRINCIPLES ................................................................................. 13
1. Pacta tertiis nec noscent nec prosunt .......................................... 13
2. Pacta Sunt Servanda .................................................................... 14
3. State Responsibility ...................................................................... 14
4. Absolute of International Law ...................................................... 14
5. Principles Governing Relations Between States .......................... 14
F. OTHER BASIC PIL QUESTIONS ...................................................................... 15
1. Citing publications of the International Law Commission ........... 15
2. Value of United Nations General Assembly Resolutions ............. 15
3. Lege Ferenda Instruments ........................................................... 15
III. BASIC REFERENCES ................................................................................... 15

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I. PRELIMINARIES

This guide contains some tips for oralists and a set of questions asked
by judges during the oral rounds of moot court competitions, and some
possible answers. While memorizing the questions and the answers here will
be helpful, note that memorization will not replace the value of going through
materials and being able to understand them. Remember, that while some
judges will be satisfied with the answers here, they might also want to probe
deeper to test the oralist’s understanding of what he just stated. Good luck!

A. CONDUCT BEFORE THE TRIBUNAL

The oral rounds of moot court competitions are simulations of actual

proceedings before international tribunals, such as the International Court of
Justice. It is therefore important to stress that you must be able to speak
throughout while observing certain formalities.

It is often tempting to simply engage the judges in conversation, or to

simply mimic the manner of recitation one has during class. While that may
make for a relaxed and familiar tone, it is important for an individual oralist to
remember that he must maintain a formal demeanor at all times. Of course,
the most important thing is to be clear and convincing.

There is no need to raise one’s voice, or to yell at the judges. Such

conduct is actually counter-productive. There is also no need for grandiose
gestures. Keeping one’s hands at his sides or firmly on the podium, while
making a few gestures for emphasis, is highly recommended.

1. Entry of Appearance

When you make your entry of appearance, you are asking the tribunal
to recognize your presence and allow you to argue before it. The first speaker
of each side begins by addressing the tribunal thus:

Mister/Madam President, Your Excellencies, good

morning/afternoon/evening. May it please the Court. My
name is (your name), first agent for applicant/respondent
(party name).

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With this Court’s indulgence, I shall reserve 10/20/x minutes of
this Court’s time for my submissions, and another 10/20/x
minutes for my co-counsel/agent’s submissions. May it please
the Court.

At this point, it might be polite to wait for some form of

acknowledgment, such as a nod. If such an acknowledgement is given, thank
the tribunal.

2. Beginning Your Speech

The delivery of speeches begins after both sides have entered their
appearance. Begin your speech thus:

Mister/Madam President, Your Excellencies, good

morning/afternoon/evening. May it please the Court. My
name is (your name), first/second agent for
applicant/respondent (party name).

Today, my presentation shall comprise (number of

submissions) submissions. If there are no preliminary
questions, I shall begin my presentation.

If there are no questions, proceed with the rest of your speech. If

there are questions asked, answer them, and ask that you be allowed to
proceed with your presentation.

It is likely that you will be interrupted in the middle of your speech.

Politely answer the questions, and ask to be allowed to proceed. If your time is
almost up, politely ask for an extension (of no more than five minutes). It is
important that the speaker keep a polite demeanor at all times, and must
never engage the judge in debate.

3. Ending Your Speech

a) First Speaker
With that, I end my presentation. If this Court has no further need of
my assistance, ‘I shall now turn this Court over to (co-agent’s name)
for our other submissions’ (or ‘I now cede the podium to my co-agent
for our other submissions.’)

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b) Second or Last Speaker
With that, I end my presentation. If this Court has no further need of
my assistance, ‘I now cede the podium to (opposite side) for their
presentation/rebuttal’ (or ‘I thank this Court for its time and
indulgence. May it please the court.’)

4. Rebuttal

During the rebuttal phase, teams are given the opportunity to point
out certain problems in the reasoning of the opposing side. During this phase,
the oralist in charge of the team’s rebuttal must, in a limited amount of time,
give the judges a recital of the flaws in the arguments made by the opposing
side. One can attack using legal basis, or resort to attacking the logic behind the
opposition’s reasoning (such as inconsistency). Personal attacks should never
be made. There are no hard and fast rules about how to begin.

End the rebuttal with a quick summary of the key points you made
during your team’s speeches (you might have to limit it to just the items
submitted for prayer). Rest by saying:

And with that, we end our presentation. Together with our written
memorial, we submit this case for the Court’s decision. We thank the
Court for its time and indulgence. May it please the Court.

B. BASIC FOOTNOTING

1. Books

Always give the author’s full name as it appears on the publication,

including any designation such as “Jr.” or “III”. Include the volume number, if
any, at the beginning of the citation. Should the title page establish an
alternative relationship between the two authors, e.g. “with” or “as told to”,
use this phrase to separate the author’s names and an ampersand otherwise.

a) First time a word is cited

i One author
4 HAROLD W. FUSON, JR., TELLING IT ALL: A LEGAL GUIDE TO THE EXERCISE OF FREE SPEECH
57-58 (1995).

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ii Two authors
A. LEO LEVIN & MAYER KRAMER, NEW PROVISIONS IN THE KETUBAH: A LEGAL OPINION 3-4
(1955).

EARVIN “MAGIC” JOHNSON WITH WILLIAM NOVAK, MY LIFE 39 (1993).

iii More than two authors

RICHARD H. FALLON, JR. ET AL., HART AND WECHSLER’S THE FEDERAL COURTS AND THE
th
FEDERAL SYSTEM 330 (5 ed. 2003).

b) Short citation

For books, reports, or other non periodic material which has been
cited in full in a law review footnote, a short form employing either “id.” or
“supra” may be used to refer to the work in subsequent citations. Never use
“infra” to refer to these materials.

Use “id.” To refer to the shorter work if it was cited as the immediately
preceding authority within the same footnote or as the sole authority within
the immediately preceding footnote. Do not use “id.” to refer to the collection
as a whole when citing another shorter work within the collection.

Use a “supra” form to refer to the collection as a whole. The “supra”

form for the entire volume should include the title of the collection (rather
than an author) regardless of whether the collected pieces have a single author
or multiple authors. It can also be used to refer to the shorter work if it was not
cited as the immediately preceding authority in the same footnote or as the
sole authority in the immediately preceding footnote. The “supra” form for the
individual work should include the last name of the author or authors, or, if
none, the tile of the shorter work.

See RAND, supra note 3, at 99; RAND, supra note 5 at 201.

2 id. ¶ 203, at 20-17; see also THE FEDERALIST No. 5 (John Jay), supra note 5, at
17.
2. International Materials

a) Treaties and other international agreements

i Three or fewer parties
Treaty of Friendship, Commerce and Navigation, U.S.-Japan, art. X, Apr. 2,
1953, 4 U.S.T. 2063.
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ii Multilateral
Geneva Convention Relative to the Treatment of Prisoners of War art. 3, Aug.
12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135
.
b) International law cases

i World Court
Fisheries Jurisdiction (U.K. v. Ice.), 1972 I.C.J. 12 (Interim Protection Order of
Aug. 17).

Military and Parliamentary Activities (Nicar. v. U.S.), 1986 I.C.J. 14 (June 27).

ii Court of Justice of the European

Communities
Case C-213/89, The Queen v. Sec’y of State for Transp. ex parte Factortame
Ltd., 1990 E.C.R. I-2433.

Kampanis v. Greece, 318 Eur. Ct. H.R. 29, 35 (1995).

iii European Court of Human Rights

Ireland v. United Kingdom, 23 Eur. Ct. H.R. (ser. B) at 23 (1976).

iv Inter-American Commission on
Human Rights East
Tortrino v. Argentina, Case 11.597, Inter-Am. C.H.R., Report No. 7/98,
OEA/Ser.L/V/II.98, doc. 7 rev. ¶ 15 (1997).

Calderón v. Colombia, Case 10.454, Inter-Am. C.H.R., Report No. 32/92,

OEA/Ser.L/V/II.83, doc. 14, corr. 1 (1992-93).

v International Criminal Tribunals

Prosecutor v. Tadic, Case No. IT-94-1-I, Decision on the Defence Motion for
Interlocutory Appeal on Jurisdiction, ¶ 70 (Oct. 2, 1995).

Prosecutor v. Kayishema & Ruzindana, Case No. ICTR 95-1-T, Judgment, ¶ 126
(May 21, 1999).
c) United Nations materials

i Summary and Verbatim Meeting

Records

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th
U.N. GAOR, 57 Sess., 42d plen. mtg. at 3, U.N. Doc. A/57/PV.42 (Nov. 1, 2002).

ii U.N. Charter
U.N. Charter art. 2, para. 4.

iii Resolutions
G.A. Res. 47/1, ¶ 33, U.N. Doc. A/RES/47/1 (Sept. 22, 1992).

iv Reports
The Secretary-General, Report of the Secretary-General on the Question of
South Africa, ¶ 5, delivered to the Security Council and the General Assembly,
U.N. Doc. S/1994/16, A/48/845 (Jan. 10, 1994).

II. BASIC PUBLIC INTERNATIONAL LAW (PIL)

The following topics are framed in the way an oralist should answer
the tribunal.

A. DEFINITION OF INTERNATIONAL LAW

International Law consists of the rules and principles of general

application dealing with the conduct of States and of international
organizations in their international relations with one another and with private
individuals, minority groups and transnational companies.

B. INTERNATIONAL HUMANITARIAN LAW V. INTERNATIONAL HUMAN RIGHTS

LAW

Your excellencies, International Humanitarian Law, as distinguished

from International Human Rights Law, is referred to as the laws of war or the
laws of armed conflict which defines the conduct and responsibilities of nations
and individuals engaged in warfare, in relation to each other and to protected
persons or civilians and property.

The core principles of International Humanitarian Law can be found in

the Geneva Convention and its protocols. The core principles are: (1) military
necessity; (2) proportionality; (3) subsidiarity; (4) legality; (5) state and
individual responsibility; and (6) command responsibility.

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C. SOURCES OF LAW (INTERNATIONAL OBLIGATIONS)

Your Excellency, Article 38 of the Statute of the International Court of

Justice is considered the authoritative enumeration of the sources of
international law. The sources are:
 International conventions
 Custom, as evidence of a general practice accepted as law
 General principles of law recognized by civilized nations; and
 As subsidiary means of determining the rules of law,
o judicial decisions and
o the teachings of the most highly qualified publicists.

1. Limitation or Disregard for the enumeration under Art.

38 of the Statute of the ICJ

Your Excellency, the second paragraph of Art. 38 expressly declares

that this Court may decide a case ex aequo et bono, or based on goodness and
equity, should the parties to the case so agree.

2. Hierarchy of the Sources

Your Excellency, it appears from the teachings of publicists such as

Brownlie that the better view is that Art. 38 does not present such a hierarchy.
However, the enumeration of sources may be seen as prescribing an order of
application of the sources. This, however, does not necessarily mean that one
source has greater weight than those that follow.

3. International Conventions (Treaties)

Your Excellency, international conventions are treaties to which

contesting States are parties.

This, however, does not preclude this Court from applying other
treaties to which the contesting States are not parties which are nonetheless
applicable, especially in the case of law-making treaties which are regarded as
reflective of either customary international law or general principles of law,
and are applied as such.

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a) Informal Treaties or Exchange of Instruments
can constitute a Binding Treaty

Yes, Your Excellency, as long as there is an intent to be bound with

respect to obligations arising from this agreement. Such an arrangement may
be deemed a treaty.

b) Important elements of State’s willingness to be

bound by a Treaty

Your Excellency, the two elements are:

 Consent to be bound, and
 That this consent be formally expressed or that such a state
practice is reduced into writing.
rd
c) 3 Party Bound by a Treaty

Your Excellency, a third party can be so bound when the treaty

contains a stipulation pour autri, although its consent may be required.

4. Custom

Your Excellency, custom is a source of law with two elements:

 State practice, and
 Opinio juris

State pratice requires: duration, uniformity, and generality. It is often

called the objective element of custom.

Opinio juris is the psychological or subjective element of custom,

which pertains to a State’s belief that it has a legal obligation to conduct itself
in accordance to a particular norm.

a) Evidence of State Practice

Your Excellency, state practice may take many forms. We submit that
the most unequivocal form would be the overt acts of states.

Some publicists state that policy statements, legal opinions, internal

documents, and special opinions prepared for branches of government, as well
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as position papers also constitute evidence of state practice, as being indicative
of national or domestic policy.

However, other publicists like D’Amato posit that only the overt acts
should be considered as evidence of state practice, because it is difficult to
evaluate negative conduct.

i Generality and Uniformity

Your Excellency, uniformity refers to the consistency of a particular

practice among states. Generality means that the practice is widespread.

ii Duration: Span of Time and Necessity

Your Excellency, duration is an important part of custom. Generally,

before the uniformity and generality of a particular practice is observed, a
period of time must have elapsed where that practice was performed.

However, it has been suggested that there may be the formation of

“instant custom.”

iii Instant Custom

Your Excellency, it has been suggested that custom may be formed

instantly. It may be inferred that the period of time necessary for practice to
mature into custom is not definite.

Citing this Court’s opinion in the North Sea Continental Shelf Cases,
even if the words “instant custom” were not expressly used therein, it may me
inferred from that ruling that even without the passage of any considerable
period of time, a practice may mature into custom, moreso when it involves
the practice of states whose interests are especially affected. As long as there is
an acceptance of the practice among states, the passage of only a short period
of time is not a bar to the formation of a new customary rule of law.

b) Standard and Basis of Opinio Juris

Your Excellency, it may be inferred that continuous conduct of a State

by itself is not enough to indicate opinio juris. Other circumstances must be

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taken into consideration, such as a clear indication that the State perceived a
legal obligation to act in such a manner.

Your Excellency, the facts of the Lotus case involves a collision

between a Turkish vessel and a French vessel. Some Turks died and the issue
was which law should apply in a collision. However, in this case, there was a
treaty provision relating to the rules of which law should apply.

5. General Principles of International Law

Your Excellency, a general principle of law is

o a rule of law
o widely accepted and applied in municipal systems of
nations

Examples of these are:

o force majeure
o estoppel
o principle of reparation
o unjust enrichment
o principle of state responsibility for the acts of its agent
o pacta sunt servanda
o good faith

a) How it is used as a source of International Law

International tribunals have employed elements of legal reasoning and

private law analogies in order to make the law of nations a viable system
applicable in a judicial process.

An international tribunal chooses, edits, and adapts elements from the

better-developed systems, the result of which should be a new element of
international law, the content of which is influenced historically and logically by
domestic law.

6. Judicial Decisions and Teachings of Highly Qualified

Publicists

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a) Judicial Decisions as a source

Your Excellency, Art. 38 of the Statute of the International Court of

Justice includes as part of the enumeration of the sources of law, judicial
decisions. Judicial decisions are not binding, except as between the parties to a
dispute in a given case.

Under Sec. 59 of the same Statute, it can be seen that there is no such
principle as stare decisis in international law. In practice, however, this Court
has consistently adhered to previous rulings, thereby producing a reliable and
stable body of decisions which can be referred to.

This Court may also adapt from decisions of municipal courts,

especially when they involve questions of international law or general
principles of law, and in any case, as evidence of state practice. (An example
might be the Yamashita case, decided by the United States Supreme Court but
which is used as the basis for some of the doctrines with regard to command
responsibility.)

b) Most Highly Qualified Publicists

Your Excellency, highly qualified publicists are experts, persons or

institutions, whose teachings are recognized as a possible source of law. While
there are no set standards to determine who are the most highly qualified
publicists, we submit that a publicist must:
 have proven experience and expertise
 in the particular field of law
 in which he is regarded as an authority.

Publicists often have works which are published in international

documents, such as journals, books, and reports.

(An example would be Ian Brownlie, a barrister at Blackstone

Chambers, London, a Bencher of Grey’s Inn in the United Kingdom, and a
Fellow of All Souls College at the University of Oxford. He is considered a
leading authority in the field of international law, with both an academic and
practicing background in the subject; he is Chichele Professor of Public
International Law in the University of Oxford (Emeritus), as well as a member of
the International Law Comission and the Institut de Droit International. His

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body of work includes a treatise, Principles of Public International Law, which is
widely regarded as one of the most authoritative references on the subject.)

7. The Role of the International Courts of Justice (ICJ)

The ICJ is the chief judicial organ of the United Nations. All members
of the UN are automatically parties to the Statute of the International Court of
Justice. The jurisdiction of the ICJ in “contentious disputes” between States is
subject to the principle of consent. It can obtain jurisdiction in three ways. First,
the States parties to a dispute may enter into an ad hoc agreement to refer a
particular legal dispute to the court. Second, States can submit an “optional
clause declaration” to the UN Secretary-General declaring that they accept the
jurisdiction of the ICJ over certain categories of disputes with other States
which have also filed an optional clause declaration. This category of disputes is
quite rare, as many States are not willing to accept the jurisdiction of the ICJ in
advance for wide categories of disputes. Third, many international conventions
contain dispute settlement clauses called “compromissory clauses” allowing
disputes between States parties to the convention to refer disputes concerning
the interpretation or application of provisions of that convention to the ICJ by
one of the parties to the dispute. Some conventions allow States to “opt out’ of
such compromissory clauses.

If a dispute between two States is decided by the ICJ, the decision is

final and binding as between the parties to the case. It is not binding on other
States. However, to the extent that the ICJ pronounces on issues of customary
law or treaty law, its judgment will be treated as an authoritative interpretation
of international law by many States.

The ICJ also has advisory jurisdiction. The UN Security Council and the
UN General Assembly may request advisory opinions on any legal question. The
UN General may also authorize other UN organs or specialized agencies to
request advisory opinions on legal questions arising within the scope of their
activities.

D. COMMON TERMS

1. Peremptory Norm

Your Excellency, a peremptory norm is a rule of law from which no

derogation is permitted.

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2. Jus Cogens

Your Excellency, jus cogens refers to peremptory norms of law which

may be invoked for the nullification of treaty clauses or obligations where
these run afoul with a recognized peremptory norm.

An example of a jus cogens norm is the prohibition against the use of

force and the prohibition against the commission of crimes against humanity.
The right to life is also a peremptory norm.

3. Erga Omnes Obligations

Your Excellency, erga omnes obligations are those obligations of one

state towards the international community as a whole, of which the rights
involves are of such importance that all states can be held to have a legal
interest in their protection. Examples of erga omnes norms include piracy,
genocide, slavery, and racial discrimination.

4. Unilateral Declaration

Your Excellency, a unilateral declaration is a publicly given declaration

of an undertaking to observe obligations made in behalf of a government to all
states in general, without need for reciprocity, acceptance, or response.

a) Withdrawal of a Unilateral Declaration

Your Excellency, a revocation must be made with due consideration of

the linkage of interests between the participants and in accordance with the
principle of good faith.

E. BASIC PIL PRINCIPLES

1. Pacta tertiis nec noscent nec prosunt

Your Excellency, it is a principle codified in Art. 34 of the Vienna

Convention on the Law of Treaties. It provides that a state which is not a party
to a treaty may not invoke the provisions of that treaty.

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2. Pacta Sunt Servanda

Your Excellencies, it is a principle codified in Article 26 of the Vienna

Convention on the Law of Treaties. It provides that every treaty in force is
binding upon the parties to it and must be performed by them in good faith.
The limitations to pacta sunt servanda are the peremptory norms of general
international law called jus cogens and the legal principle of clausula rebus sic
stantibus, as codified in Article 62 of the Vienna Convention, which allows for
treaty obligations to be unperformed due to a fundamental change of
circumstances.

3. State Responsibility

Your Excellency, it is a principle embodied under Article 1 of the

Articles of State Responsibility. It provides that a breach of international law by
a State entails its international responsibility. It has two elements:
 the act or omission is attributable to the State under international
law; and
 the act or omission constitutes a breach of an international
obligation of the State.

4. Absolute of International Law

Your Excellency, the applicability of this principle may be cast in doubt

where the treaty in question is either a law-making treaty or can be considered
as reflective of customary international law or a general principle of law.

5. Principles Governing Relations Between States

The general principles governing friendly relations between States are

set out in UN General Assembly Resolution 2625. It states that the progressive
development and codification of the seven principles below would secure their
more effective application within the international community and would
promote the realization of the purposes of the United Nations. Therefore, the
resolution sets out the consensus in the international community on the
content of the following seven principles:

1) States shall refrain in their international relations from the threat or

use of force against the territorial integrity or political independence

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of any State, or in any other manner inconsistent with the purpose of
the United Nations
2) Pacific settlement of disputes
3) Non-intervention in matters within the domestic jurisdiction of any
State, in accordance with the Charter
4) Co-operation with one another in accordance with the Charter
5) Equal rights and self-determination of peoples
6) Sovereign equality of States
7) States shall fulfill in good faith the obligations assumed by them in
accordance with the Charter

F. OTHER BASIC PIL QUESTIONS

1. Citing publications of the International Law Commission

Your Excellency, the publications of the International Law Commission

may be cited when they concern questions of international law.

Your Excellency, the ILC culls evidence of state practice in order to

formulate drafts of treaties. Thus, in the very least, they may be regarded as
teachings of the most highly-qualified publicists.

2. Value of United Nations General Assembly Resolutions

Your Excellency, these resolutions are recommendatory. However,

while they are merely recommendatory, they evince opinio juris and if coupled
with state practice, they may form the basis of customary international law.

3. Lege Ferenda Instruments

Your Excellency, these are recommendatory instruments generally

regarded as “soft law” as they do not have the force and effect of law.

III. BASIC REFERENCES

IAN BROWNLIE, PRINCIPLES OF INTERNATIONAL LAW (2008)

JAMES CRAWFORD, INTERNATIONAL LAW COMMISSION’S ARTICLES ON STATE RESPONSIBILITY:

INTRODUCTION, TEXT AND COMMENTARIES (2002).

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1 JEAN-MARIE HENCKAERTES & LOUISE DOSWALD-BELT, CUSTOMARY INTERNATIONAL
HUMANITARIAN LAW (2005)

1 OPPENHEIM, INTERNATIONAL LAW (Jennings & Watts, eds., 1999).

MALCOLM SHAW, INTERNATIONAL LAW (2002)

International Law Commission, Articles on the Responsibility of States for

Internationally Wrongful Acts, Report of the International Law Commission on
the Work of its 53rd session, A/56/10, August 2001, UN GAOR. 56th Sess. Supp.
No 10, UN Doc A/56/10(SUPP), (2001).

Shelton, D., Remedies in International Human Rights Law (Oxford, Oxford

University Press 1994)

UNITED NATIONS CONVENTION AGAINST CORRUPTION

Further reading:

 VCLT
o Negotiations
o Entering into a treaty (especially with regard to
reservations, etc.)
o Implementation
o Ratification
o Succession
 Interplay of custom and treaty
 State Responsibility
 United Nations
 International Court of Justice
o Standing
o Option Clause of the Statute
o Jurisdiction
o Admissibility

COLAYCO CUP 2010 | TEAM ADMINISTRATORS:

ANG.DIMACULANGAN.BONDOC.ESCOSIA.GURREA.LAGROSAS.REYES