Return To: The 2019 AMUN Handbook

The 2019 AMUN Handbook

International Court of Justice

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The International Court of Justice (ICJ), sometimes referred to as the World Court, is the primary judicial organ of the United Nations. It sits in The Hague, Netherlands and is composed of fifteen independent Justices from around the world. The ICJ is the only court in the world with general and near-universal jurisdiction; countries may bring cases before the Court even without becoming United Nations Member States, as long as both countries have consented to be subject to the Court’s jurisdiction. It may entertain any question of international law, subject to the provisions of its founding statutes.

The Court’s role is to examine international law and to settle legal disputes submitted to it by states. It also dispenses advisory opinions on legal questions referred to it by authorized United Nations organs and specialized agencies. Since 1946, the Court has heard more than 160 cases, including more than 25 advisory proceedings. ICJ opinions, unlike most national legal systems, do not create binding legal requirements on other United Nations Member States, and cases are generally treated independently of one another.

The Justices are nominated by regional groups and elected by the General Assembly and Security Council for nine-year terms. Justices must receive a majority vote in each body to be named to the Court, and one third of the Court is elected every three years. When a state is party to a case before the ICJ, it enjoys the right to appoint an ad hoc justice. The ad hoc Justice does not need to be from that State. The ad hoc Justice enjoys the same privileges and responsibilities as the other Justices, but his or her obligation is limited to proceedings in that case.

Unlike most other international organizations, the members of the Court are not representatives of governments; they are independent judges whose first duty is to exercise their powers impartially and conscientiously in the Court.

Proceedings before the Court can last for years, involving complex issues of international law as well as difficult political questions. The States party to the case submit pleadings, or memorials, in writing along with extensive records supporting their cases. The States also participate in oral arguments, which allow States to explore the case and respond to questions from the Justices. The Justices deliberate in private, then read the judgment in an open forum.

Common Types of Cases Common Types of Cases

The Court hears two types of cases, all involving countries rather than individuals. First, there are contentious cases between two States where there is a legal dispute and the States parties are bound to the Court’s decision. States may institute proceedings by mutual agreement or by unilateral application against a respondent State. This is different from the International Criminal Court, which hears cases against individuals for crimes such as genocide.

Many of the Court’s cases—historical and contemporary—are border or territorial disputes, where two States agree to let the ICJ decide where the border should be. Other cases are highly charged and quite political in nature—it is rare that the interpretation and application of the law operates entirely outside of the realm of political discourse, and in the international arena, this is especially true.

Second, the Court can issue advisory opinions on legal questions referred to it by other agencies, such as the Security Council or the General Assembly. This opportunity is open to the five major organs of the United Nations and 16 other specialized agencies. Unlike the rulings in contentious cases, advisory opinions are not binding on the parties that request the opinion; the organization is under no legal obligation to follow the Court’s recommendation. The Court requests written and oral proceedings for the case, although these processes may be truncated when compared to the process used for contentious cases.

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Structure of the AMUN ICJ Structure of the AMUN ICJ

In keeping with AMUN’s philosophy of simulating United Nations bodies as closely as possible, the AMUN ICJ closely resembles the ICJ in the Hague. The ICJ at AMUN is composed of student Justices who hear oral arguments, deliberate on the cases before them and collaboratively develop opinions of the Court. Students also participate as Advocates, presenting their case first in a written memorial and then in oral arguments, where they present their case in person and respond to questions from the Justices.

AMUN Registrars assist the Justices with any additional legal research the body may require and help facilitate the work of the Court through each of the three cases. Secretariat responsibilities also include researching cases for inclusion on the Court’s docket, reviewing memorials submitted to the Court, assisting in the preparation of the Court’s docket and providing any other assistance needed by ICJ Justices and Advocates.

The cases preselected by the AMUN Secretariat form the Court’s docket. This year the Court is deliberating three cases:

  • Passage through the Great Belt (Finland v. Denmark)
  • Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia v. Singapore)
  • Avena and Other Mexican Nationals (Mexico v. The United States of America)

Additionally, the General Assembly or the Security Council may submit a request to the Court for an Advisory Opinion on a topic of international law. The Secretary-General, with the advice of the Director of the ICJ, will decide whether to include additional cases on the Court’s docket. The Court is in session to hear arguments and develop opinions throughout the Conference.

The Justices should expect to spend the first evening setting the docket, electing officers, determining the final procedures of the Court and reviewing the substantive issues in each case before the Court. The rest of Conference will be spent hearing cases, deliberating and rendering opinions on those cases.

Although the Secretariat strives to give the Justices as much freedom as possible in setting the docket, some restraints do exist in the interest of promoting a fair and equal experience for the advocates as well as the Justices. All advocates will receive an equal amount of time in the docket to present their arguments, respond to questioning and for deliberation among the Justices. Although advocates will not know the order of the cases and arguments prior to the first evening of the simulation, the Secretariat, in conjunction with the Justices, will strive to communicate the order as soon as it is set to the advocates. The docket is also published in the AMUN Chronicle. After the docket is set, the Court elects a President and Vice President by secret ballot. Their duties are to moderate and time the oral arguments and facilitate the closed deliberations.

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Joining the International Court of Justice Joining the International Court of Justice

Permanent Justices Permanent Justices

Justice positions are assigned by application on a first-come, first-served basis until the fifteen seats on the Court are filled. Note that no school will be allowed more than one Justice on the Court unless additional seats are open just prior to the Conference. It is not a requirement for Justices to be a member of a delegation. Permanent Justices are full time Conference assignments, and representatives serving as Justices shall not be assigned to another simulation.

Ad Hoc Justice Application and Role at Conference Ad Hoc Justice Application and Role at Conference

States involved in a case before the Court are strongly encouraged to place an Ad Hoc Justice on the Court if they do not already have a Permanent Justice. States wishing to do this may do so in two ways: (1) they may apply to be a permanent Justice (see above); or (2) they may appoint an ad hoc Justice. Ad hoc Justices sit on the Court only for the case in which their country is involved and must be assigned to another simulation. If States wish to appoint an ad hoc justice they must contact the Secretary-General and the Director of the International Court of Justice by 1 October by e-mailing icj@amun.org. Ad hoc Justices should, whenever possible, be paired with another representative in committee, so the State is fully represented in the committee while the ad hoc Justice participates in the Court’s proceedings.

Advocates Advocates

Advocate positions are not full-time Conference assignments. ICJ Advocates are assigned as members of the delegations who have cases before the court. Generally, Advocates should expect to spend two to three hours presenting their case and hearing the Court’s opinion during the Conference. Advocates must also serve as representatives in another AMUN simulation or as a delegation’s permanent representative. ICJ Advocate teams are limited to two people. ICJ Advocates should, whenever possible, be paired with another representative in committee, so the State is fully represented in the committee while the Advocate participates in the Court’s proceedings.

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Preparation Preparation

Preparing as a Justice Preparing as a Justice

Familiarizing yourself with the information provided in this handbook and on AMUN’s website is a key starting point to your preparations. Justices should familiarize themselves with the factual and legal disputes at hand, as well as the international treaties involved. Another helpful resource is previous ICJ opinions that are similar. While reading opinions, note the tone and style used by the Justices. Pay special attention to the way the Court addresses questions of jurisdiction; often this is the crux of the winning argument for the Court. Memorials written by the Advocates will be made available on the AMUN website in November as soon as memorials from all sides of a case are received by AMUN staff. Reviewing these resources is key to a successful experience.

Each Justice, while independent, will still have a roleplaying function. ICJ Justices retain their citizenship with the state their school represents at the Conference. Justices not affiliated with a delegation will be assigned citizenship with a state; while ICJ Justices are supposed to be independent advocates for the law, they often come to the Court with inherent biases based on their home country’s history, culture, religion and laws. Similar to the ICJ in The Hague, a Justice’s citizenship is important as it can sometimes cause a Justice to favor or side with the position advocated by their country of origin when that State comes before the Court.

All Justices will be expected to hear arguments and question the Advocates in all cases on the docket. Any Justice not present during the Court’s Oral Arguments may not participate in the subsequent deliberations and opinion writing for that case. After each case is argued, the Justices retire behind closed doors to deliberate and to draft the opinion of the Court. Justices discuss the case in depth, pulling from their research prior to the Conference, the Advocates’ memorials and the points raised during oral argument. If the Justices require any additional information, they are welcome to request that from the Registrars. Justices collaborate to write a majority opinion and as many concurring and dissenting opinions as the body requires. Justices use their persuasive writing and speaking skills to sway additional Justices to their position throughout the drafting process.

Preparing as an Advocate Preparing as an Advocate

Advocates’ opportunity to present their case is twofold: written memorials and oral arguments. Advocates must thoroughly understand the legal principles that support, and those that oppose, their position, and be able to articulate them in the face of strict scrutiny from the Justices. The research and creation of an Advocate’s Memorial is one of the most important parts of preparation for an Advocate’s at-Conference role. Time spent thoroughly researching the Advocate’s State’s positions and arguments provides Advocates with the vital information necessary to respond to questions at Conference and helps them effectively craft a memorial to present their arguments to the court before the Conference.

Prior to oral arguments, Advocates have the opportunity to consult with an ICJ Registrar about their oral argument. To take advantage of the opportunity, Advocates should attend the Advocate meeting on the first evening of Conference, where the Registrars will share information about the simulation timeline and give Advocates the opportunity to set up a practice session.

Written Memorials Written Memorials

ICJ memorials should contain:

  • Jurisdictional statement and arguments (outlining whether your country recognizes the Court’s jurisdiction in this case)
  • Statement of facts (what are the relevant facts in the case?)
  • Statement of law (what treaties, customs or laws apply?)
  • Argument section (detailing how the law and facts apply to the merits of the case – how do the laws and facts support your case?)
  • Summary and prayer for relief (what do you want the Court to do?)

The Court does not require these sections to be in any particular order, although they are typically laid out in the order shown. As you draft your memorial, think carefully about how best to use these sections to your advantage to advocate your position.

The plaintiff, or party bringing the case, is called the Applicant. The defendant is called the Respondent. In an Advisory Opinion, each country is known as a Party. Due to time constraints, all Parties in any AMUN ICJ case must prepare their memorials without seeing the memorial of their opponent. However, each side should anticipate and seek to counter the arguments opposing Advocates might make. All memorials must be submitted by 25 October to the AMUN Secretariat at icj@amun.org.

Oral Arguments Oral Arguments

Oral arguments provide Advocates with an opportunity to explain to the Justices the factual and legal merits of their case. In adversarial cases, the Applicant will argue first. The Respondent will then have the same amount of time to reply. Finally, the Applicant will have the opportunity to present a brief rebuttal. In Advisory Opinion cases, each Party will have a set amount of time to present their argument to the Court and for rebuttal, the order for which will be determined by the Justices on the first evening. Advocates presenting amicus curiae arguments will then be accorded no more than five minutes each to speak. The Justices will create the docket and define the amount of time for oral arguments. Advocates, with the exception of amicus curiae, should prepare between 10 to 20 minutes for arguments. The oral argument is not simply an opportunity to give a prepared speech; Justices often interject with multiple questions throughout the presentation. At least the first five minutes of each Advocate’s presentation will be uninterrupted, to allow each side the opportunity to freely present the key issues of their arguments. After the initial five minutes, the Advocates may continue with their presentations, but the Justices may also interject and question the Advocates on the merits of their case. Therefore, Advocates must be prepared to both answer questions and defend their positions. The following steps should be taken to prepare for oral arguments:

  1. Identify the critical issues in the case. You should try to have at least three main points to your argument.
  2. Develop a theme which incorporates your best arguments on the critical issues. Keep it simple. Remember, the best arguments are structured around a story that has a unified theme, which explains why your country has been wronged, and what the Court can do to provide a fair and just solution.
  3. Prepare an outline. The outline should include your theme, your best arguments on the critical issues, your responses to your opponent’s best arguments and ideas about answers to any other questions you think the Justices might ask. Try to make your memorial and oral argument outline consistent, so the first issue addressed in the memorial is the first issue addressed in the oral argument.
  4. Practice, practice, practice! There is no substitute for practicing oral arguments: your presentation is likely to be smoother and more persuasive. Have your Faculty Advisor or other students fire questions at you. Learn to field those questions and then transition back to the point you were making prior to the question.
  5. Learn proper courtroom demeanor. Remember to be polite and deferential to the Justices at all times. While argument is the method, persuasion is the goal.

Though each Advocate will have more than five minutes to present oral arguments, keep in mind that only the first five minutes of the presentations will be uninterrupted. Focus on the main points and key issues during the first five minutes. AMUN suggests that you follow a pyramid format; present the crux of the argument first and then use the remainder of the allotted time to expand on those issues in a more thorough and complete manner. This format can also allow for a quick means of referencing issues during the remaining period of presentation and questions. It is also wise to conclude the presentation by again summing up the key points.

Try to anticipate questions the Justices might ask and develop answers. Do not write out answers verbatim. Do, however, write out catch phrases or legal terms you will want to remember precisely. Simple, concise answers that repeatedly stress the same points are persuasive and will be remembered by the Justices. Oral arguments will involve extemporaneous speaking and responses, not the presentation of a memorized speech.

Outline the specific names of conventions, treaties and cases in your memorial and your outline. Your oral argument requires these citations to maintain your credibility with the Justices, and articulate the reasons your side of the case is stronger.

Note: Remember that the AMUN ICJ is a simulation. No one expects participants, who are not lawyers or Justices, to make presentations, decisions or render opinions with the same level of sophistication as actual ICJ Justices or Advocates. The participants’ job is to gain a basic understanding of what considerations are taken into account when presenting or presiding over a case and to prepare to argue their cases before the Court.

 

Passage through the Great Belt (Finland v. Denmark) Passage through the Great Belt (Finland v. Denmark)

This is a historical case. In accordance with AMUN rules and procedures, please note that the historical timeline for this case will stop on 1 June 1992. Any and all updates to this case after that date will not be relevant to the AMUN simulation nor considered in hearing the case.

The government of Finland, on 17 May 1991, filed a grievance against Denmark in the International Court of Justice under Article 40(1) of the ICJ Statute and Articles 38 and 40 of the Rules of Court regarding Denmark’s planned construction of a bridge over the Great Belt (Storebælt), which is a prominent shipping canal between the two States. Both Denmark and Finland have previously universally accepted the jurisdiction of the Court. Denmark declared acceptance of the Court’s jurisdiction on 10 December 1956, and Finland did the same on 25 June 1958; as a result, jurisdiction is not at issue for the Court for the purposes of this case.

On the same date of filing its application, Finland additionally requested the Court grant provisional measures preserving Finland’s right to continue utilizing the Great Belt for its ships to pass between the Baltic and North Seas. If granted, the provisional measures would halt any further construction on the bridge Denmark wants to construct over the Great Belt until the Court decides this case on its merits.

The Great Belt, a strait of water that passes through Danish territory, is one of the few passages between the Baltic Sea and the North Sea. This strait allows for the most direct route of passage between Finland’s territorial waters, through the Baltic Sea, out to international waters, which allow Finland to provide international transport and shipping. As the largest of these passages, it is an important shipping route for the region. The strait also is one of the deepest of the Danish straits, and because of its depth, it is ideal for larger cargo vessels and oil rigs. Denmark’s proposed bridge is planned to be a height of 65 meters, which will allow smaller vessels to pass through without issue but would inhibit the movement of larger ships, particularly the drill ships and oil rigs that Finland utilizes. 

Historically, the Danish Crown had charged dues for ships passing through their waterways, but with the 1857 Treaty of Copenhagen on the Abolition of the Sound Dues, these dues were abolished, and the straits of Denmark were labeled as international waterways. In the Court’s first decision for a contentious case, the Court permitted travel through “straits used for international navigation between two parts of the high seas” in The Corfu Channel Case (United Kingdom of Great Britain and Northern Ireland v. Albania). This decision became a part of the norms in international waters in Part III of the United Nations Convention on the Law of the Sea (UNCLOS), which establishes a legal regime of free passage through territorial waters. A century after the Treaty of Copenhagen, the Geneva Convention on the Territorial Sea and the Contiguous Zone entered into force on 10 September 1964, which establishes the rights of a State in relation to its territorial sea. More specifically, Article 16, Paragraph 4 of this Convention does not allow for a State to suspend innocent use of straits used for international passage between high seas.

However, the right of passage Article 16 refers to is not an absolute right, as it permits coastal States to take steps to prevent passage that is not innocent and temporarily suspend use in specific areas of its territorial sea in the name of security of the State. Additionally, the UNCLOS establishes the concept of transit passage, which allows freedom of passage through a strait for vessels to move between different parts of the high seas. UNCLOS is generally accepted as providing customary rules for navigating on international bodies of water.

There is an established right in international law permitting freedom of innocent passage through straits used for international navigation. Because of this, if the Great Belt is established as a strait for international navigation, there is a high hurdle to reach in order to permit action in opposition to the freedom of innocent passage. Finland relies heavily on the Great Belt for its maritime shipping industry, including movement of oil rigs and drill ships, for which other passages between the Baltic Sea and the North Sea are inadequate. Finland asserts there is no explicit international law that permits Denmark to exclude foreseeable ships with a height of 65 meters or more. Also, Finland acknowledges that Denmark has a territorial right to improve its sovereign waterways, but this right is limited by other States’ right to free passage in the strait.

Generally, the bridge Denmark is proposing to build is of a sufficient height to allow for the average use of most nautical vessels, which would not prevent free innocent passage entirely. This bridge would connect two portions of the country of Denmark, facilitating the ease of transportation between the two land masses. Denmark asserts that this bridge will not substantially impede other states’ right of free passage, because there are other alternate options. For example, traffic in the Little Belt, an alternative strait, is roughly 4.5 times greater than traffic in the Great Belt, so it may be considered a viable alternative as a shipping passage. Denmark asserts State sovereignty must be considered in any case when the rights of States are considered in relation to rights in international law wherein there may be variance in interpreting the applicable law. In 1927, the Permanent Court of Justice discussed this intersection of a State’s sovereign rights with international law in the Lotus case. States have sovereignty over their territorial waters, but that sovereignty reaches its limits at the rights of other States as well as the rights guaranteed in agreements between States. Denmark asserts that there are alternative options for ships too tall for the bridge as well, including partial deconstruction to pass under the bridge. Additionally, Denmark asserts that the structures in question are so large they are not technically ships.

The Court must consider the extent of a State’s sovereignty in comparison to a State’s right of innocent passage under Article 16 of the Convention on the Territorial Sea and Contiguous Zone. In determining this, the Court must decide whether there is a right of free passage for all ships or whether passage is limited to a particular designation of ships. If the court determines that there is freedom of passage through the Great Belt, the Court must determine whether construction of the bridge as proposed by Denmark would be compatible with that passage.

Questions to Consider

  • How much emphasis should the Court put on the importance of State sovereignty in questions involving rights to territorial seas?
  • How can the Court balance the right to navigate international waters and the right of State sovereignty over a State’s territorial waters?
  • What obligations does a State have to observe in preserving the rights of another State traveling through their territorial waters?
  • Does a State’s purpose in its use of international waters affect what rights should be afforded to it?

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Bibliography Bibliography

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Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia v. Singapore) Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia v. Singapore)

This is a historical case. In accordance with AMUN rules and procedures, please note that the historical timeline for this case will stop on 1 January 2006. Any and all updates to this case after that date will not be relevant to the AMUN simulation nor considered in hearing the case.

Malaysia and the Republic of Singapore (Singapore) entered into a Special Agreement on 24 July 2003, which requested the Court to determine whether the sovereignty of Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge belong to Malaysia or Singapore. As part of the Special Agreement, the States have agreed to treat the Judgment of the Court as final and binding upon them.

Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge are maritime features located approximately eight nautical miles from Malaysia and roughly 25 nautical miles from Singapore in the Singapore Straits. Pedra Branca/Pulau Batu Puteh is a small white island known as Pedra Branca in Singapore, which translates from Portuguese as “white rock,” and Pulau Batu Puteh in Malaysia, which translates from Malay as “white rock island.” Middle Rocks and South Ledge are smaller land masses located south of Pedra Branca/Pulau Batu Puteh, with Middle Rocks visible at high and low tides and South Ledge completely submerged at high tide. The Horsburgh Lighthouse was built on Pedra Branca/Pulau Batu Puteh after construction was first considered in 1844 when the island was under the sovereignty of the Sultanate of Johor. In order to commence construction of the lighthouse, Britain requested permission of the Sultan and principal official of Johor to build the lighthouse, which was granted. The construction was completed in 1851, and the lighthouse was named for James Horsburgh of the East India Company. Following construction, the Horsburgh lighthouse was maintained and governed by British entities, and these duties were later passed on to Singapore.

In 1979, Malaysia distributed a map of the State’s territories, which showed Pedra Branca/Pulau Batu Puteh as within Malaysia’s territorial waters. Singapore objected to this map as being incorrect, and the two States entered into negotiations. When they determined that these bilateral talks were not going to result in agreement, the States entered into the Special Agreement to bring the question of ownership of these maritime features to the Court.

In order to determine sovereignty, the Court must determine the date that the dispute crystallized and the status of Pedra Branca/Pulau Batu Puteh and both States at the time the dispute ripened. Malaysia and Singapore were previously governed by the colonial powers in the area, so in order to fully understand the significance of this case, it is imperative to understand the history of sovereignty in the region.

Additionally, the Court must define Pedra Branca/Pulau Batu Puteh, Middle Rocks and South ledge as either a single group of maritime features or three separate land masses. The Court must determine sovereignty over Middle Rocks and South Ledge, depending on the sovereignty of Pedra Branca/Pulau Batu Puteh and delimitation of territorial waters of the two States. If the three formations are a single group of maritime features, the sovereignty of Middle Rocks and South Ledge would belong with Pedra Branca/Pulau Batu Puteh. Conversely, if the three are not a single group of maritime features, sovereignty over these lands could be divided. Whether or not these features form a single group will have a great impact on their treatment by the Court in forming a decision over sovereignty. 

In the Island of Palmas case, the Permanent Court of Arbitration established an international legal norm for territorial conflicts. When sovereignty is exercised without contest from the State that discovered the territory, the State exercising sovereignty has a greater claim. While this sets a precedent for the Permanent Court of Arbitration, it is not binding on the International Court of Justice as they are two separate judicial organs. The Permanent Court of Arbitration encourages dispute resolution among a range of international entities through arbitration and the International Court of Justice settles international legal disputes between states and gives advisory opinions on legal questions from United Nations organs.

Further international legal norms from the United Nations Convention on the Law of the Sea are relied upon to determine issues between States at high sea, including issues such as the question of ownership of land masses here. Additionally, the Court must consider the implications of the Anglo-Dutch Treaty of 1824 in the transfer of sovereignty of Pedra Branca/Pulau Batu Puteh from the old Johor Sultanate to the new Johor Sultanate as well as the subsequent Crawford Treaty. The Crawford Treaty granted Britain sovereignty over Singapore and the islands within ten miles of its coast.

Malaysia is the successor state of the Sultanate of Johor, which is the governing body that gave the East India Company permission, as an organ of Britain, to build a lighthouse on Pedra Branca/Pulau Batu Puteh in 1844. This permission would not have been needed if Britain believed or was treating Pedra Branca/Pulau Batu Puteh as under its sovereignty, and the Sultanate granted nothing further than permission to construct and operate the lighthouse. The dispute before the Court arises because Malaysia continues to assert ownership over the island of Pedra Branca/Pulau Batu Puteh despite Singapore’s claim over the island as a result of the construction of the lighthouse and the treatment of both countries of the lighthouse and island in the following years.

In maps made by Singapore until the mid-1990s, Singapore did not include Pedra Branca/Pulau Batu Puteh, while conversely, the Sultanate of Johor and Malaysia alike always included the island as part of its sovereign lands.

According to Singapore, Pedra Branca/Pulau Batu Puteh has been previously treated as terra nullis, nobody’s land, including that the land did not belong to the Johor Sultanate. Because of this, the aforementioned acts of building, maintenance and governance of the Horsburgh lighthouse were actions made as if Singapore owned the territory, which could rise to taking lawful possession of the island. Additionally, Singapore has exercised acts of State in respect to the island of Pedra Branca/Pulau Batu Puteh with no opposition from Malaysia. These types of actions over time would grant sovereign authority over a land mass. Malaysia has recognized Singapore’s sovereignty through both explicit official acts and implicitly by maintaining silence in response to Singapore’s actions towards Pedra Branca/Pulau Batu Puteh, which show a failure to claim or act as if the territories were their own. More explicitly, Malaysia’s predecessor, the Sultanate of Johor, wrote stating that it did not claim ownership over Pedra Branca/Pulau Batu Puteh in a letter to Singapore in 1953.

The overarching question for the Court’s consideration is the sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge. As preliminary issues, the Court must determine the status of the ownership over these features at the time the dispute crystallized as well as whether the three land masses should be treated individually or separately.

Questions to Consider

  • What actions constitute exercising sovereignty?
  • What actions or inactions constitute acknowledgment of another party’s sovereignty?
  • How do the arguments put forth by Malaysia and Singapore relate to the legal principle of adverse possession?

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Bibliography Bibliography

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Avena and Other Mexican Nationals (Mexico v. The United States of America) Avena and Other Mexican Nationals (Mexico v. The United States of America)

This is a historical case. In accordance with AMUN rules and procedures, please note that the historical timeline for this case will stop on 1 December 2003. Any and all updates to this case after that date will not be relevant to the AMUN simulation nor considered in hearing the case.

Mexico brought its application to the International Court of Justice for its case against the United States of America on 9 January 2003, claiming that the United States breached Articles 5 and 36 of the Vienna Convention on Consular Relations of 24 April 1963. Mexico requested the Court find the United States in violation of the Vienna Convention for convicting and sentencing 54 Mexican nationals to capital punishment without access, as prescribed in the Convention, to the Mexican consulate. Additionally, Mexico requested that the Court indicate provisional measures which would require the United States to guarantee that no Mexican nationals are executed while the final decision of the Court is pending.

Prior to the Vienna Convention, Mexico and the United States entered into the Consular Convention between the United States and Mexico dated August 12, 1942, which provided guidance to consular relations, more specifically, between the two States. The language of this Consular Convention is similar to the language of the Vienna Convention in relation to consular relations. Both the United States and Mexico are States Parties to the Vienna Convention.

The Mexican citizens in this case were tried, convicted and sentenced to capital punishment under criminal law of the United States. Of issue is the United States’ use of procedural default rules, which preclude a defendant from raising new claims in federal court that were not previously raised in state court proceedings. In response to the United States’ continued detainment of Mexican nationals on death row, Mexico sought relief to prevent their execution in United States federal court in the case of United Mexican States v. Woods, 126 F.3d 1220 (1997). The case resulted in the 9th Circuit affirming the district court’s dismissal, citing the 11th Amendment to the United States Constitution, which does not permit a foreign government to bring suit against a state in federal court.

In additional prior proceedings, Mexico requested an Advisory Opinion from the Inter-American Court on Human Rights (IACHR) on the issue of consular assistance under due process of law. The request focused on the issues at hand here, which include a Mexican national’s right to communicate with the Mexican consulate when the national has been tried, convicted and sentenced to capital punishment in the United States.

Before addressing the merits of the case, the Court must address the question of the nationality of the individuals whose rights are at issue here. Along with their nationality, the Court must determine the importance and impact that the nationality of the individuals will have on further determinations in the case.

Additionally, the Court must find it has jurisdiction to hear the case. Under Article 36 of the Statute of the Court, the Court’s jurisdiction includes cases that States refer to it as well as matters provided for in treaties that are in force. Article 1 of the Optional Protocol of the Vienna Convention concerning the Compulsory Settlement of Disputes grants the Court compulsory jurisdiction over the interpretation and application of disputes arising out of the Convention. Both Mexico and the United States have signed on to the Optional Protocol, so they are bound to the Protocol’s jurisdictional requirements; however, the issue of jurisdiction is not settled. In order for the Court to find it has jurisdiction, the issues brought by Mexico for the Court to decide must require the interpretation or application of the Vienna Convention, and the Court cannot make decisions that would infringe on the sovereignty of a State.

If the Court determines it has jurisdiction, the primary dispute revolves around the interpretation of the Vienna Convention on Consular Relations of 24 April 1963. Articles 5 and 36, in particular, form the basis of the conflict. Article 5 establishes the fundamental Consular functions covered under the Convention, including protecting the sending State’s interests according to international law as well as helping develop relationships between States. Article 36 establishes the scope of communications permitted between Consular officers of a sending State and the nationals of the same sending State. The freedom to communicate is established by Article 36(1)(a). Under Article 36(1)(b), these communication freedoms include that foreign nationals who are arrested must be given notice of their rights “without delay” to have their State’s embassy or consulate notified that they were arrested. Additionally, under Article 36(1)(c), consular officers have the right to visit nationals of their State who are under arrest or further detained by the receiving State as well as the ability to arrange for legal assistance. The second paragraph under Article 36 provides clarification that the Article must conform with the laws of the receiving state, with the rights of Article 36 still being given full effect.

In LaGrand (Germany v. United States of America), the Court found that the rights under the Vienna Convention must be given full effect within a State, which means that domestic law should not hinder these rights. Additionally, the Court ruled that orders made under Article 41 of the Convention, which gives the Court power to indicate provisional measures, do have binding effect. As a result, the Court’s remedy was for the United States to review and reconsider cases at issue under these circumstances. Although the considerations of the Vienna Convention under LaGrand may seem similar to the facts at hand, the Court’s decisions in prior cases do not represent binding precedent.

Failing to notify Mexican nationals of their right to communicate with the Mexican consulate in the United States would constitute a violation of Article 36 of the Vienna Convention. In order for this notification to be considered proper, it must have been given in line with the Convention, including being given to the detainee without delay.

On the other hand, actions made in good faith that are in conformity with the LaGrand decision should be considered as in compliance with Article 36 of the Vienna Convention. In addition to this, the definition of “without delay” in subsection (b) of Article 36 is open to interpretation, but it can be understood as being done within the ordinary course of business and without procrastination or deliberate inaction. In order to establish a breach of Article 36, the petitioner must prove the elements within the Article for each of the defendants at issue.

Brought before the Court is the issue of whether or not the United States breached Articles 5 and 36 of the Vienna Convention on Consular Relations of 24 April 1963, by convicting 54 Mexican nationals and subsequently sentencing them to capital punishment. If the Court does find the United States in violation of the Vienna Convention, they must also consider what would be the proper remedy in this case. 

Questions to Consider

  • How is the nationality of a citizen determined, and how does the State where they are physically located affect that?
  • How is the term “without delay” defined?
  • How should the interpretation of subsections of a treaty depend on whether they are considered independently or in conjunction with each other?
  • How should procedural default rules within a State’s judicial system interact with international treaties?
  • When the International Court of Justice was created, along with the United Nations Charter, to what extent did the founding Member States intend for provisional International Court of Justice rulings to be binding?

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