EXPERT PANEL - Structured Summary of the Expert Panel Discussion

Panel Overview and Key Themes

 Panel Composition: Experts included practitioners and academics with deep

involvement in Jessup and international law, such as Benjamin Salasur (ICJ special
assistant), Jess Peak (UCLA Law), L. (Indiana University), and Herman Kitner (UC Davis).
They addressed questions on intervention, indigenous rights, general principles of law,
and state immunity.

 Purpose: To provide expert interpretations and strategic advice on the problem’s legal
questions, enabling teams to develop sound arguments grounded in international law
sources and case law while managing the competition’s unique procedural format.

I. General Analytical Framework and Sources

• Case Type: The dispute is framed as a Special Agreement/Compromis case.

• Sources of Law: Students must utilize the sources of international law under Article 38(1)
of the ICJ Statute, understanding the complex interaction and relationship between treaties,
customary international law (CIL), and general principles of law.

• Controlling Documents: Analysis must be thorough regarding the specific details and
nuance found in the treaties (ARPA and SRPA).

• Non-Binding Instruments: Teams must determine how the International Court of Justice
(ICJ) deals with and interprets declarations, specifically the United Nations Declaration on
the Rights of Indigenous Peoples (UNDRIP).

• National Security: Arguments involving national security should be read carefully in the
specific context in which they are presented in the Statement of Agreed Facts, and students
must determine the persuasive weight of this argument (as it may be a "red herring").

II. QP1: Intervention under Art. 62(Sollania) [54(a)]

This question relies primarily on the interpretation of Article 62 of the ICJ Statute
concerning a third party's right to intervene.

Source
Requirement Key Analytical Points for Teams
Citation

ARTICLE 63 & DO NOT discard Art. 63 intervention cases, because courts have ARTICLE
other intro interpreted art 62 in it as well. (Art 62 cases are more relevant, but 63
dont discard art. 63 cases)
 Look at separate opinions of judges. Art 62 hasnt been dealt with
since the Jurisdictional Immunities case

2 questions/components:
Art 62
1. Whether interest alleged by state is of legal nature?

2. Whether the interest may be affected by a decision

The intervening state (Sollania) must demonstrate that its interest

Legal Interest is of a legal nature, not merely political or economic.

The legal interest must "may be affected" by the decision; this is a

low standard focused on possibility rather than likelihood.

The standard under 62 is not whether the interest “will be” or

Affectation “likely to be” affected. Court is not called upon to address the
Standard likelihood of the effect on the interest. El Salvador 1990 case

Hence, standard is much lower - The threshold for intervention

is possibility, not likelihood of interest being affected.

Is intervention the only way a state could protect the legal

interest? – Nicaragua v. Columbia (Court considered that it can be
protected w/o intervention – not very open, court was
conservative)
Scope of Effect
The interest may be affected not only by the final outcome (the
operative clause) but also by the reasoning that constitutes the
necessary steps to reach the decision.

Intervenor must show what way the interest may be effected.

ICJ Discretion Teams must address the controversial, open question of - whether
the Court has discretion to reject an intervention application, even
if the conditions are met, based on considerations such as the
sound administration of justice or potential duplication.

Importance of reading separate opinions and prior ICJ

jurisprudence (e.g., Nicaragua v. Colombia, El Salvador 1990).
- Interaction with Article 59 on the effect of ICJ decisions on third
states. (in Nicaragua – court used the phrase that there is no right
 to intervention, but open question if its an absolute right or no
right at all)

Do states have a right to intervene under art. 62? (if cond. met –
court has to admit the intervention OR discretionary power)

Read Art. 62 in conjunction w. Art 59

Article 59 Arguments must consider the relationship between Article 62 and

Interaction Article 59 (which limits the binding effect of the decision to the
parties), noting that the Court’s interpretation of treaty or custom
and it’s decision still affects third States.

Key Insights and Guidance from the Panel

Intervention (QP1):

 Legal interest must be distinct from political solidarity.

 The ICJ’s intervention under Article 62 may be subject to the court’s discretionary
power, although this remains debated.
 Teams should ground arguments in ICJ jurisprudence and separate opinions.

III. Question Presented 2 (QP2): Indigenous Rights: Consultation & FPIC

Consultation and Consent [54(b)]

This concerns Restovia’s obligations regarding indigenous consultation and the Gorge
development.

• Core Obligation: Analyze whether there is a treaty or customary-based obligation to

consult or to obtain Free, Prior, and Informed Consent (FPIC).

• FPIC Definition:

Carefully define and interpret “free,” “prior,” and “informed” consent using UN guidance,
case law, and regional/national jurisprudence. (use case laws in international and national,
regional cases)

Rigorously define and interpret the content of FPIC - “free,” “prior,” and “informed”
consent, drawing guidance from relevant UN bodies, national, and regional case law. FPIC
involves determining whether it operates purely as a procedural right or as a broader human
rights-framed right.

• Customary Law Proof: When arguing that FPIC is a customary obligation, analyze state
practice and opinio juris. (prove or disprove for either sides)
• The UN Declaration on the Rights of Indigenous Peoples is relevant but not binding; courts
have previously weighed declaratory documents carefully. (how court must interpret a
Declaration like UNDRIP)

• Indigenous Rights Context: The question requires grappling with how the cultural, land,
and cultural rights of indigenous peoples might inform the specific requirements of
consultation and consent.

• Examine whether FPIC is a procedural right or substantive human right. (Look into UN and
its work on indigenous people)

Key Insights and Guidance from the Panel

Indigenous Rights and FPIC (QP2):

 Defining FPIC’s components precisely is crucial.

 Teams should study UN documents, relevant case law, and treaties carefully.
 The issue involves balancing procedural and substantive rights.

IV. Question Presented 3 (QP3): General Principles of International Law and Extradition
[54(c)]

This involves Alekostria's refusal to extradite Liz Scott based on ne bis in idem (double
jeopardy) as a general principle of law.

• First time in Jessup history - explicitly requires application of general principles. This topic
forces students to utilize the complex methodology for identifying general principles as a
source of law.

Approach it as a 3 part process

• Identification Methodology: The analysis must first determine how to identify the general
principle, (two modes) specifically whether it is derived from national legal systems or
formed within the international legal system.

*** Use this: ILC General Principles of Law, Texts and titles of the draft conclusions adopted
by the Drafting Committee (20 May 2025), A/CN.4/L.1018 ***

• Transnational Scope: Arguments must prove that double jeopardy exists and applies as a
general principle specifically in the transnational extradition context.

(Teams must argue whether the principle of double jeopardy is a general principle
applicable in an international context, especially in extradition.)

• Scope and Exception: Define the scope of the principle, including whether a dismissal
based on procedural due process (as happened in Alekostria) satisfies the requirement for
ne bis in idem under international law.
• Relationship to Other Sources: Consider how general principles interact with treaties (like
the Extradition Treaty) and customary rules, such as those related to double criminality or
procedural human rights law (e.g., ICCPR).

Complexity arises from limited ICJ jurisprudence on general principles.

Key Insights and Guidance from the Panel

General Principles (QP3):

 Identifying general principles involves complex methodology; students must educate

judges unfamiliar with the concept.
 Double jeopardy’s application in extradition must be carefully argued, including its scope
and exceptions.
 The problem encourages exploration of how sources of international law interact (treaty,
custom, general principles).
 Decide which model of identification you’re trying to use

V. Question Presented 4 (QP4): State Immunity (Jurisdictional Immunity) - (NEXCA) [55(d)]

This addresses Restovia's denial of sovereign immunity to NEXCA in the wrongful death
lawsuit.

• Governing Law: Arguments should be primarily grounded in customary international law

(CIL).

No treaty applies directly; reliance on customary international law and ICJ case law
(notably Germany v. Italy).

• Starting Point: Teams must choose whether to analyze the issue from the baseline of
states having plenary territorial jurisdiction (requiring proof of immunity) – look for state
practice or opinion juris granting immunity to state owned enterprises - or absolute
immunity (requiring proof of exception).

• Applicable Exceptions: Consider exceptions to immunity, the facts implicate the

commercial activity exception and the territorial tort exception to state immunity.

• Evidentiary Basis: When researching CIL on immunity, consult the practice of domestic
courts and tribunals. (The burden of proof regarding customary rules and exceptions is a
strategic issue)

Commercial activity exception.

• Nature (of the entity claiming immunity) vs. Purpose: A key debate is whether immunity
should be granted because the entity is state-owned (purpose) or denied because the
relevant conduct (negligent operation of the SARV) falls under commercial activities (nature
of the act).
State-owned enterprises’ immunity is nuanced and varies by jurisdiction and domestic law.

• Attribution/Causality: The tort claim involves complex analysis of causality regarding the
negligence that occurred at NEXCA headquarters in Alekostria but caused injury in Restovia.

Look into the footnotes of ***Virginia Journal of International Law – “Prosecuting Foreign
States”***

Key Insights and Guidance from the Panel

State Immunity (QP4):

 Customary international law and ICJ precedent form the backbone of arguments.
 Commercial activity and territorial tort exceptions require careful factual and legal
analysis.
 State-owned enterprises present a challenging frontier for immunity claims.

VI. Advice on ICJ Procedural Research

• Primary Documents: Begin research with the UN Charter – that sets out the court, the
Statute of the Court, and the Rules of the Court (available on the ICJ website).

• Secondary Resources: Consult authoritative commentaries on the Statute and Rules, such
as the Zimmerman commentary, and utilize research guides offered by institutions like the
Peace Palace Library. (Rule 81 – 86 regarding intervention)

• Jessup Context: Be aware that the competition requires flexibility regarding rules on
intervention due to the structure of the case (Applicant, Respondent, and a non-party
intervenor).

• Persuasiveness of Sources: ICJ decisions are the most persuasive source, followed by
academic literature, which is encouraged in briefs (citing highly qualified publicists)

General Advice on Jessup Procedure and Research:

 Start research with the UN Charter, the ICJ Statute, and Rules of Court.
 Use authoritative commentaries (e.g., Zimmermann) and secondary literature to support
arguments.
 Understand the unique procedural adaptations Jessup makes compared to real ICJ cases,
especially for interventions.
 Be mindful that clarifications and corrections to the problem are forthcoming, which may
affect interpretations.
 Strategic sequencing and layering of arguments is key, especially given the complexity
and novelty of issues.
On National Security References:

 Thrown around in the spl agreement but not a lot of details in the facts
 These may be red herrings or relevant; teams must carefully assess context and actors
involved.
 Explore the nature versus purpose distinction in immunity contexts.- look into academic
literature and cases about - national security and land resource extraction aspect

Difference between intervention as a right and permissive intervention u/A 62

 Application for permission to intervene

On Overlapping Claims and Duplication in Intervention:

 The court may consider duplication and partiality concerns when intervention mirrors a
party’s position.
 Whether intervention is a right or discretionary affects these dynamics.

Compulsive/treaty based jurisdiction – leads to the creation of Statement of Agreed Facts

clause –