1st WCEL International Water Justice Moot Court in Brasília

The 1st WCEL International Water Justice Water Justice Moot Court was held on 21 March as a special event during the Conference of Judges and Prosecutors on Water Justice at the 8th World Water Forum in Brasília (Brazil). This innovative showcase of the judicial process "in action" featured written submissions and live oral arguments by six law students from around the world on questions of the potential legal personality of rivers and the impact of the climate crisis on water law disputes. The students' arguments were presented to a mock panel of the International Court of Justice consisting of six active sitting high-court judges, followed by insightful commentary from technical and legal experts. The program for the event is posted HERE.

The moot court followed an innovative collaborative format, serving as the 3rd Tony Oposa Intergenerational Moot Court, first unveiled by WCEL and partners at the 6th IUCN World Conservation Congress held in 2016 in Hawai‘i (USA). There, law students from five countries argued a question on inter-generational climate justice before a mock panel of the International Court of Justice (ICJ).[1]

Building on this experience, WCEL proposed a "International Water Justice Moot Court" to the organizers of the 8th World Water Forum as a way to share with a broader audience the "real work" of judges, to engage law students, and to advance legal knowledge on cutting edge water law issues. The Forum organizers, particularly Ambassador José Antônio Marcondes de Carvalho (Chief Environmental Negotiator of Brazil), enthusiastically embraced the moot court proposal and generously provided funding for the law students to travel to Brasília in order to participate in this event.

Like the Hawai‘i moot, instead of a traditional law school mock appellate competition, this “International Water Justice Moot Court” was a collaborative, transparent, and pragmatic showcase of judicial processes. Through the materials posted on this web site, the students, judges, and commentators are sharing with all Water Forum participants, and the global community, the most current and highest level of legal expertise to help the world address these urgent legal issues involving critical freshwater resources.

Six Global Law Students

The six law students chosen to submit memorials and deliver oral arguments for consideration by the mock panel were personally nominated by leading experts from around the world. These mentors are commended for their input and assistance that enabled the students to accomplish outstanding work. The students, assuming the role of International Regional Organizations invited to make submissions to the court, were as follows:

• Matija Kajić (Utrecht University, Netherlands; representing the European Union)
• Phyllis Kasyoka (Strathmore Law School, Kenya; representing the African Union)
• Miranda Steed (William S. Richardson School of Law, University of Hawaii, USA; representing the Organisation for Economic Co-operation and Development) with substantial assistance on the memorial from Iris Moriyama (Elisabeth Haub School of Law at Pace University, USA)
• Tawhiao McMaster (Te Piringa Faculty of Law І Te Whare Wānanga o Waikato, New Zealand; representing the Alliance of Small Island States)
• Hiba Fatima Hassan (Lahore University of Management Sciences, Pakistan; representing the South Asian Association for Regional Cooperation)
• Nathalia Montemagni Pires (University of São Paulo, Brazil; representing the Organization of American States)

The biographies and thoughtful reflections from these law students are posted HERE.

• Emmah Wakube (Lecturer and Moot Court Advisor at Strathmore University Law School, Kenya) provided outstanding support for the students as the lead oral argument coach and coordinated the event with Denise Antolini (William S. Richardson School of Law, USA) assisted by hard-working Student Manager Miranda Steed.

Presiding Judges of the "International Court of Justice"

The mock panel consisted of the following eminent judges from supreme courts, environment courts, and regional courts:

Co-Presidents of the Court

• Justice Ragnhild Noer (Supreme Court of Norway and Member, Interim Governing Committee, Global Judicial Institute on the Environment)
• Justice Sergio Muñoz (Former Chief Justice, Supreme Court of Chile)

Members of the Court:

• Justice Chirawan Khotcharit (Environmental Division, Supreme Court of Thailand)
• Justice Brian Preston (Chief Judge, Land and Environment Court of New South Wales, Australia and Member, Interim Governing Committee, Global Judicial Institute on the Environment)
• Justice Emmanuel Ugirashebuja (East African Court of Justice, Rwanda and Member, Interim Governing Committee, Global Judicial Institute on the Environment)
• Justice Michelle Weekes (High Court of Barbados and Member, Interim Governing Committee, Global Judicial Institute on the Environment)

Background to the International Court of Justice

The International Court of Justice (ICJ) was selected as the forum for this moot court because of its important role in providing advisory opinions on legal issues, allowing for an elevated dialogue about trends in the law that was less country-specific and more universal in nature.

The ICJ was created as the judicial organ of the United Nations in 1945. Located in The Hague (The Netherlands), the ICJ has fifteen sitting elected judges.[2] The Court has two main functions:  to resolve legal disputes among States and, when requested by authorized bodies (United Nations organs and specialized agencies), to issue advisory opinions on legal issues. Advisory opinions are usually on general or specific questions of international law and custom that States are either unable or striving to, resolve among themselves, or through other channels. Decisions are not binding on any party but are customarily accepted as law and afforded the highest level of deference.

For example, in 1996, the ICJ issued an opinion entitled “Legality of the Threat or Use of Nuclear Weapons,” a case in which it was asked to determine Member-States’ legal obligation to in good faith pursue total disarmament in relation to nuclear weapons.[3] In that case, the Court decided that there was indeed such an obligation. UN Member States took that to heart and began to work toward nuclear non-proliferation, a process that ultimately resulted in the drafting of the Treaty on the Non-Proliferation of Nuclear Weapons, or the Non-Proliferation Treaty (NPT).[4]

To date, no ICJ advisory opinions have been released on topics relating to freshwater or climate change and, more specifically, the duty to prevent environmental harm through acknowledging and protecting indigenous peoples’ legal interests in rivers.[5] However, the ICJ has adjudicated a significant number of cases regarding transboundary watersheds.

The Moot Court – Format and Focus

Problem Statement:

Freshwater Rights under International Law in Relation to the Potential Legal Personality of Rivers and the Climate Crisis

Questions for the ICJ:

The “Water Justice Moot Court” is premised on a hypothetical United Nations General Assembly (UNGA) resolution, A/RES/72/Water, issued on February 1, 2018, that requested an advisory opinion from the ICJ on two questions:

Question 1: Under what circumstances does international law recognize the rights of rivers as having legal personality?

1.1: Do rivers enjoy legal personality?

1.2: Under what circumstances should rivers enjoy legal personality?

Question 2: Is international water law adequate to respond to the global climate crisis, which causes significant disruption in the hydrological cycle, by providing a framework for preventing and resolving disputes among states over the protection from pollution and sharing of water quantities from transboundary rivers, lakes, and aquifers?

The questions are addressed extensively in the students' memorials posted HERE.

Moot Court Procedure

The Statute of the ICJ and the Rules of Court state that when a question of international law has been referred to the ICJ, it has the right to ask for oral arguments on the issue, and all states and organizations considered to be involved parties in the matter are entitled to weigh in on the question, presenting their positions in front of the court.[6]  After the ICJ has concluded its deliberation of the issue, its opinion is presented in open court.[7]

As the set up for this moot court, the participants assumed that Resolution A/RES/72/Water was sent to the ICJ by the United Nations Secretary-General. Upon reviewing the referral, the ICJ decided that it would invoke its right to hear oral arguments and invited interested International Regional Organizations to submit written statements (Memorials) as an efficient way to represent the multiplicity of State interests in the proceedings.

The ICJ suggested further that Memorials submitted through these Regional Organizations should specifically address existing and developing general principles of international law, as well as globally important domestic law decisions. The Memorials could also refer to legal interests in protecting freshwater that pertain to implementation of the Convention on the Law of the Non-Navigational Uses of International Watercourses and other international agreements, customary law, and the development of the global environmental rule of law.

Memorials submitted to the ICJ for consideration were written to weigh the benefits of legal precedent in the global response to the sharing of freshwater in light of the negative impacts of climate change and the nascent recognition of the legal personality of rivers, against the potential costs to individual States as a result of subsequent clarification of the ability to litigate non-compliance with established international freshwater law.

In preparation for oral arguments, the Court requested submission of Memorials from these six Regional Organizations:

• South Asian Association for Regional Cooperation (SAARC)
• African Union (AU)
• Alliance of Small Island States (AOSIS)
• Organization for Economic Co-Operation (OECD)
• Organization of American States (OAS)
• European Union (EU)

A Memorial is a position paper prepared by the Advocates/Agents on behalf of the group or nation that he/she is representing. Pursuant to Article 49 of the ICJ Rules, it contains “a statement of the relevant facts, a statement of law, and the submissions,” or requests for relief. The Memorials addressed both of the two questions presented to the ICJ.

To assist the highest quality preparation of Memorials, the law students were allowed, and encouraged, to collaborate with other students, faculty, and experts in the field for advice and materials. The students also shared access to a collaborative library of international law materials relevant to the two questions for this Moot Court and through their memorials have contributed additional background materials to advance the knowledge on these topics.

Outcomes

All six Memorials, reflections, and student biographies are now posted HERE in full text as "Downloads" on the webpage dedicated to this Moot Court.

The oral argument was taped for the purpose of education, training, and public access and will soon be posted on this page.

For more information, please contact the WCEL “International Water Justice Moot Court” Advisory Committee through Coordinator Denise Antolini (WCEL Deputy Chair) Antolini@hawaii.edu and Moot Court Advisor Professor Emmah Senge Wabuke (Strathmore University Law School, Kenya) esenge@strathmore.edu.

For more information on WCEL, go to: https://www.iucn.org/commissions/world-commission-environmental-law/our-work/global-judicial-institute-environment

[1] ICJ4ICJ: Inter-generational Climate Justice Moot Court Workshop, William S. Richardson School of Law, University of Hawai‘i, Environmental Law Program, http://blog.hawaii.edu/elp/international/tony-oposa-integenerational-moot-court/. 

[2] The Court, International Court of Justice, 2015, http://www.icj-cij.org/court/index.php?p1=1.

[3] Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226.

[4] Id.

[5] List of Advisory Proceedings referred to the Court, International Court of Justice, 2015, http://www.icjcij.org/docket/index.php?p1=3&p2=4.

[6] ICJ Statute, Ch. IV, Art. 66; ICJ Rules, Pt. IV, Art. 105.

[7] ICJ Statute, Ch. IV, Art. 67.