Moot Law

By Dimitri Lascaris

My first foray into international law occurred thirty years ago. As a second-year law student at the University of Toronto, I wanted to secure a place on one of the law school’s moot teams (simulated court proceeding). At that time, the University of Toronto law school participated in four moot competitions, but only one of them presented an opportunity to moot against non-Canadian law schools: that competition was the Phillip C. Jessup International Law Moot.

In the ensuing try-outs, I performed well enough to secure a spot on the Jessup team.

Dimitri Lascaris

Our Jessup moot team’s first task was to prepare and submit to the competition’s organizers a legal brief. The brief would be evaluated by lawyers having expertise in international law. It would form the basis of the oral submissions we would make throughout the various phases of the competition.

The essential facts of our imaginary dispute were as follows:

A cargo vessel bearing the flag of State A transported hazardous substances through international waters off the coast of Antarctica. There, it released some of those substances into the ocean. Unbeknownst to the crew of the vessel, within those waters resided an extremely rare species of fish. That species could be found nowhere else on earth. Shortly following the ship’s release of hazardous substances into the ocean, the entire species was wiped out.

State B then brought a claim against State A before the International Court of Justice. State B had no territorial claim over the waters in question and no interest in the destroyed species that was different from the interest of any other state in that species. I was assigned to act for the complainant, State B.

For the next six months, the Jessup moot competition consumed me and my three team-mates. We succeeded in winning the Canadian championship and advanced to the international finals in Washington, D.C., where we represented Canada. Law schools from over 40 countries participated in the international phase of the competition.

By the time we arrived in Washington, I had fallen in love with international law. Yet, the more that I came to understand the architecture of international relations, the more I came to understand that international law is not ‘law’ in the conventional sense. The reason, quite simply, is that there was (and remains) no effective mechanism for the enforcement of international law.

Israel’s decades-long impunity vis-a-vis international law is a powerful demonstration of this reality. The United Nations General Assembly and Security Council have adopted hundreds of resolutions relating to Israel and Palestine. Many of those resolutions contain stinging rebukes of Israel’s treatment of the Palestinian people.

Moreover, in 2004, the International Court of Justice unanimously ruled — with the concurrence of an American jurist — that Israel’s settlements violate the Fourth Geneva Convention. In the international community, there is near unanimity on that point, and has been for decades.

Even Theodor Meron has so opined. Mr. Meron is an international jurist who was legal adviser to Israel’s Foreign Ministry when Israel began to build settlements in the West Bank shortly after the 1967 war. Last year, Professor Meron publicly confirmed the opinion he secretly rendered to Israel’s Foreign Ministry in the late 1960s and meticulously dismantled the arguments Israel has advanced since then in support of its claim that its settlements do not violate international law.

And yet, despite the broad and long-standing consensus on the illegality of Israel’s settlements, those settlements are more extensive today than ever. The core reason for this injustice, in my view, is the structure of the United Nations.

Five states hold permanent seats on the United Nations Security Council, which has the power, under Chapter VII of the United Nation’s Charter, to impose sanctions or take military action to counter threats to peace, breaches of the peace and acts of aggression. Each of the permanent members enjoys a veto right that cannot be overcome by super-majority voting.

Three of those permanent members — the United States, Britain and France — are staunchly committed to defending Israel’s apartheid regime, however human rights-oriented their rhetoric may be. Indeed, the United States has used its veto power over forty times to prevent the Security Council from censuring Israel.

Wall between Israel and Palestinian town of Qalqilya (David Kattenburg)

Despite the Security Council’s abject failure to protect Palestinian rights under international law, Israel’s apologists claim that the United Nations is biased against Israel. UN Watch, a staunchly pro-Israel website which holds itself out as a watchdog of the United Nations, routinely points to the many resolutions condemning Israel adopted by wide margins at the General Assembly and the UN Security Council. UN Watch also criticizes the United Nations for allowing egregious human rights violators like Saudi Arabia to occupy positions of influence in UN bodies that are mandated to advance the cause of human rights.

UN Watch routinely ignores, however, that the United Nations has never backed up its many condemnations of Israeli aggression with meaningful sanctions. Under the circumstances, UN Watch’s complaints of anti-Israel bias are, at best, specious.

When it comes to the enforcement of international humanitarian law, there is no greater impediment than the veto rights of the most powerful states. Until we address that structural flaw in the United Nations Charter, the United Nation’s pronouncements will have little more effect on Israel than the judgment of a moot court.

Dimitri Lascaris is a Canadian lawyer, journalist and activist. He is a correspondent and board member of The Real News Network and a board member of Canadians for Justice and Peace in the Middle East. Dimitri will be a panelist in two sessions of the Israel, Palestine & International Law Symposium: ‘Israel’s Rights & Obligations Under International Law’ (together with Michael Lynk), and ‘Canada’s Obligations Under the UN Charter and International Law’.