Public International Law Counter-Memorial
Public International Law
The written assessment for this course is the preparation of a Counter-Memorial (NOT Memorial) in a case before the International Court of Justice (‘ICJ’). The word limit for the Counter-Memorial is 2,500 words (including substantive footnotes, but not including simple citation footnotes). The examiner will stop reading the Memorial when a student has reached the word limit.
Students will act on behalf of the Republic of India to produce a Counter-Memorial (hereafter ‘Counter-Memorial’) in respect of the current application before the ICJ:
Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v India) (Application filed 24 April 2014).
The Counter-Memorial should respond to the following prayer for relief sought by the Marshall Islands in its Application:
The Republic of the Marshall Islands requests the Court to adjudge and declare
(a) that India has violated and continues to violate its international obligations under customary international law, by failing to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control, in particular by engaging a course of conduct, the quantitative buildup and qualitative improvement of its nuclear forces, contrary to the objective of nuclear disarmament.
Students must familiarize themselves with the Application on the ICJ’s website.
As this is in fact a Counter-Memorial (and given that at this stage the Applicant’s Memorial has not been published on the ICJ website), students should respond to the Application itself.
Students must respond to the merits of the claim, and indeed this should be the focus of the Counter-Memorial, but students may also foreshadow any possible jurisdiction and admissibility challenges to the claim.
GUIDANCE ON DRAFTING A COUNTER-MEMORIAL
Article 49 of the International Court of Justice’s Rules of Court (1978) sets out the requirements for Memorials and Counter-Memorials. It is important to remember the purpose of a (Counter) Memorial: it is not intended as a balanced or neutral research paper; it is instead designed to persuade the reader of the strength of a party’s arguments. Therefore, students should use the Counter-Memorial as a form of written advocacy.
For the purposes of this assessment task, the Counter-Memorial should include the following:
1. Short Introduction.
The introduction should be short and functional.
Its purpose is to orient the reader to the relevant background and nature of the dispute, and to foreshadow the gist of India’s response to the Application filed by the Marshall Islands.
2. Statement of Facts.
This should be succinct and should not attempt to set out in extensive detail every relevant fact. Students should save their words for the pleadings.
3. Jurisdiction and Admissibility.
Where applicable, students may elect to identify any strong ground(s) upon which to challenge the court’s competence to hear the case. If students do decide to aIDress jurisdiction and admissibility, they should keep this section brief, as the focus of the assessment task is on the merits of the claim.
4. The Law.
This section should be succinct and should summarise the relevant law. It must clearly demonstrate an understanding of the sources of international law.
5. Pleadings in Response to Allegations.
Students may title this section as they wish; however, students are essentially drafting their formal pleadings here. This is the main part of the Counter-Memorial.
6. Relief Sought.
Set out what India wants the Court to decide.
List India’s pleadings in summary form. For a good example, see the recent Memorial filed on behalf of Australia in the Whaling Case (and students may also wish to have reference to Japan’s Counter-Memorial in that case).
The following criteria will be considered in assessing the Counter-Memorial.
• Linkage between the Counter-Memorial’s introduction, body and conclusion
• Research and reliance upon relevant primary and secondary information
• Coherence in legal and conceptual analysis
• Understanding of interaction of law and policy in area
• Critical analysis and thought
• Focused, integrated and logical development of structure and ideas
• Overall persuasiveness
• Following the structure of a Memorial format
• Marshalling of primary and secondary authorities
• Economy and clarity of language
• Observance of word limit
• Appropriate use of footnotes, paragraphs, headings and sections
• Attribution of others’ work
• Appropriate use of quotations
It is very important that your work is properly referenced. This requirement is twofold.
First, you must attribute your sources. Whenever you draw from someone else’s work or refer to a particular portion of a judgment, you should include a footnote with the ‘pinpoint reference’ (i.e. identifying the precise page(s) or paragraph(s) to which you refer). If you use someone else’s turn of phrase, you must be sure to use quotation marks.
Second, you must ensure your referencing is in the proper style. In order to do this, you should consult the Australian Guide to Legal Citation.
Remember that it is better to over-reference than to under-reference, so always err on the side of caution.