les voix: For/Getting｜Re/Membering

2012/10/28 這天應邀到《Jessup Experiences Sharing Workshop》
做memo writing的經驗分享...寫了講稿, 就分享到部落格上, 跟大家分享囉!!! :)

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There are 2 aspects in contribution to the stage of creating memorials. One depends on the teamwork, and the other rests on personal efforts. With respect to teamwork, there are two phases: cooperation & confirmation.

In terms of cooperation, every team has different ways to collaborate and communicate, but the only thing that everyone must bear in mind is not to forget to discuss with others whatever in terms of each argument or position. To make every problem public, to make every opinion known, and open for any discussion and examination are really important. By the way, in terms of allocation of work, I would suggest each member deal with one claim, simultaneously for both of the Applicant and Respondent, and jurisdictional and substantial parts at the same time. It will be fairly easier and less complicated for a team to make contexture of the whole memo at the last stage.

Interpersonal relationship is important too, so work together should be based on trust and reciprocity. Don’t do anything or say any word without thinking during the whole process, or you’ll be the only black sheep among all.

With regard to confirmation, what I wanted to say is to point out the significance of efficiency and consistency. the main reason and necessity for good cooperation is to take advantage of brainstorming together and double-check of position in order to make efficiency and consistency at the first place, in which unnecessary labor and wasting time can be fairly reduced, or even prevented. In light of this, any stupid question should be avoided, if you just haven’t studied. Any lamb response or unhelpful discussion should be wisely excluded, or this kind of teamwork can obstruct everything without notice.

Don’t be reluctant to be corrected, and don’t be afraid to be correcting, because the only target for everyone should be completing a good memo, and it’s nothing personal or judgmental.

As to personal efforts, everyone has to be capable of handling 5 steps in accomplishing his/her own claim, including: preparing materials, creating arguments, constructing structures, completing contents and adjusting formats.

Materials preparation includes three main points. First you have to know how to collect the legal instruments and other academic works that you will need, maybe from UN or other IO’s websites, Westlaw and every school’s library engine, but believe me the simplest way is always by means of googling for the key words. Having all the materials, you have to know what to choose and how to use them. In fact, those which can be taken as sources of law or evidence of the sources are the most important, and as for others, they are all about the contents.

Take an example of the list of the first batch of Basic Materials provided by the ILSA on their website. Besides those which were easily come up with or already hinted in the Compromis itself, like the UN Charter, ICJ Statute, ICCPR, ICESCR and VCLT, but also those which must be highly relevant to both sides’ arguments, like the Refugee Convention and its Protocol, Vienna Convention on Succession of States, Montevideo Convention, and the Statelessness Convention, ICMW.

But, what’s more important, some among all are apparently beyond your knowledge, and they sometimes even cannot be counted as source or rule of international law, like the Paris Club Rule, the Millennium Declaration and those Development Goals it contains with, IMF’s HIPC Project, and the UNCTAD Principles on Promoting Responsible Sovereign of Lending and Borrowing.

Thus, what would be harder? First, if there is no specific clause regarding what you are looking for in those written agreements, then you should definitely find out the best way for both sides to argue in terms of interpreting or applying the rule from somewhere, and the VCLT interpretation rule and other subsidiary sources of law will be very useful.

However, secondly, if there is even no treaty, then you should try more efforts on proving there’s a customary international law or a general principle of law by those abundant IGO’s resolutions, declarations, States’ positions towards the issues concerned, maybe it’s difficult, but this is the most scores-appealing point in a Moot Court platform, because if you can really make you almost there, then it would be seen as such a breakthrough from nowhere of law. So, besides being a copy cat from other respectful scholars’ work, everyone should be brave to think, to develop what you think and to speak out what you develop, I mean, in your own opinions by your own words.

Creating arguments can be said the most difficult part of all. However, Before ascertaining what argument you are going to build in you draft, try every argument as many as possible. Before you can prove it useless, presume it as a useful one. When you have certain material at hand, you can start making arguments which can be induced or inspired by what you have. At the same time, you have to carefully read through the Applicant and Respondent’s prayers for relief, and figure out what they request the Court to do.

Look upon paragraphs 55 and 56 of the Compromis, they are just talking about these. Take the first claim as an example. The Applicant requests the Court to adjudge and declare that Alfurna is still a state, and accordingly, the Court may exercise jurisdiction over its claims, and the Respondent on the contrary requests the Court to adjudge and declare that Alfurna is no longer a state, and accordingly the Court lacks jurisdiction over Alfurna’s claims. As we can see, this is a preliminary objection among all to the Court’s jurisdiction. So, what should you first refer to? Then, what are the factors that would undermine the Court from making decisions regarding the Alfurna’s situation, justiciability, admissibility, locus standi of parties or jurisdiction materiae? You would find out a lot of information concerning the statehood of a State which territories are sinking into seas, but what you have to solve first is what factor you are trying to prove for or against the Court’s to base its competence on this matter.

Constructing the structure of your arguments means you have to make everything you want to express in the memo logical and comprehensive. Not simply show off how many points you have at hand, but show others how you elaborate them meaningfully and gradationally. There are two kinds of layers to order the arguments, vertically or horizontally.

Take an example from the second claim. Look upon the second claim. The Applicant requests the Court to adjudge and declare first that Alfurna is entitled to make claims in relation to the migrants now in Rutasia, and further that Rutasia has failed to process those migrants and accord them status consistent with international law. On the other side, the Respondent request the Court to adjudge and declare that Rutasia has not violated international law in its treatment of the migrants from (former) Alfurna at the first place, and further, Alfurna is foreclosed from making claims with respect to those individuals because of its failure to take available affirmative steps to protect them.

What do these two long sentences mean? Why does the Applicant need to claim its legal entitlement to make claims concerning those people? Is there anything possible circumstances that would obstruct it from making claims? If so, how does the Applicant respond otherwise? Likewise, why does the Respondent put this question after the substantial matters? What may be implied from the phrase “failure to take available affirmative steps” in Respondent’s claim relating to Applicant’s “entitlement”? Jurisdiction must come first or not? Which paragraph of this claim should be the other’s alternative, and why is it alternative? All of these questions are the so-called vertical layers. So they are like what we want to claim in principle, but if the Court regards otherwise, then what our position shifts to be.

On the other hand, with regard to whether the Respondent has violated any legal obligations under international law regarding those people, and whether it should be responsible for that, the relevant arguments may be horizontal, such as the immigration law, the refugee law, and the human rights law? Would they be violated at the same time or not? This question can be solved only when you can answer what kind of legal status of those people should be under international law. Under different bodies of law, different treatments would be expected distinctly, and what the Respondent is obliged to do or not to do are different without question. Therefore, to think through under what law, the best protection can those people enjoy and the most advantage should the Applicant take of against the other; vice versa. Lastly, your structure will determine your position, so do make sure whether your teammates also agree with your opinion at the same time.

To complete contents into your memo, without questions, how to write a legal memo in English is always the greatest challenge for many people. Bluntly, legal English is sophisticated and trying to make it formal and elegant needs a lot of efforts all along. Many people have asked me how to improve this quickly. If my answer is there are no tips, then I may be too insincere and unresponsive.

In fact, I always teach people to make a draft first, and of course, it must be as complete as possible. Put all the materials you are going to use altogether, read through them and find out every good sentence with nice wording which are just saying what you want to say, and those proper usages in facts or laws which indicate the same thing in your original text. Then, use them into your draft. I am not saying to quote them, but to replace your words from them. It’s always easier to copy beautiful wording from others than to come up with by yourself. In my idea, it’s not cheating, but sort of process of learning.

On the other hand, there is another thing even more important, that is, to tell the story fascinatingly and make your readers uphold your arguments. Here, what I want to suggest is that besides the interpretation of law, the application of facts is also determinant. One side view on the agreed story is not forbidden. To sum up, the language you use has to be understandable, comprehensive and attractive.

Last but not the least, format adjustment is also important. It determines the judges’ and your opponents’ first impressions, let alone those strict Official Rules which requires penalty at any violations. So, please do pay attention to what it demands, particularly on the parts of lining, footnotes and index of authorities which in my opinion are not easy to deal with.

Strategically speaking, getting better scores in memorials means winning at the first place in oral rounds, and needlessly to say, the team which could avoid from making any unforgivable fault in form would undoubtedly get higher chance to win first. Therefore, double check your work after it is printed out and before you hand over them.

I have to admit that the Jessup competition’s Compromis of this year is really interesting and challenging. This is just a proper chance for me to recheck the normative lacuna of human rights law on reduction of extreme poverty and review the legal vacuum of refugee law on environmentally displaced persons. Anyway, with my best wishes, good luck to each of you.