Jessup is the world’s largest international law mooting competition, and this year’s case just dropped. Here are my thoughts after a quick and raw read!
What’s the case about?
A religious council takes over Astoria through violence and bans women from work, education and public life.
Rendor (a neighboring country) responds by (1) freezing Astorian companies’ bank accounts, (2) sending naval ships to rescue women fleeing Astoria, and (3) offering asylum to Astorian women.
Astoria sues Rendor before the International Court of Justice (ICJ) for these actions. Rendor argues it’s only trying to stop human rights abuses and that Astoria’s new government isn’t even legitimate.
(Part of this case is seemingly inspired by the buzz that some countries are taking Afghanistan to the ICJ, so tip: read up everything you can about that!)
Here are the 4 legal questions with answers and tips.
First: Can the ICJ even hear the case?
Is the new government of Astoria (SARCO) legitimate enough to bring a lawsuit, or did it seize power illegally and therefore lack standing?
Look, the ICJ just wants to know it’s dealing with a state.
A government that has effective control over the territory (i.e., runs the courts, collects the taxes, commands the army, etc.) is a state in the ICJ’s eyes… full stop.
The way it got there is a different question, of course! And states were encouraged to withhold their recognition according to the Jessup story.
But that doesn’t matter for purposes of whether the ICJ can hear the case.
Tip: (Good) judges probably won’t care how SARCO took power (legitimacy) — focus on (dis)proving effective control instead.
(And it would be pretty boring if the ICJ couldn’t hear the case and everyone went home, right? So this is by design.)
Second: Did Rendor illegally punish Astorian businesses?
The Astorian businesses are the Castell Group (parent), and its subsidiary Castell Drywall (subsidiary).
The parent company signed contracts with SARCO to build gender-enforcement infrastructure. Render sanctioned both companies.
Astoria says the sanctions are illegal expropriation: taking property without compensation. Rendor should pay up.
Rendor says no, the assets are not seized but only frozen – Astoria still owns them. That’s allowed.
Rendor’s problem is: if you freeze someone’s assets permanently, and they have no realistic way to unfreeze them… that looks like taking property anyway.
But! It’s increasingly acceptable under international law to use economic measures (like this one) to enforce human rights.
So Rendor can probably successfully argue that the Astorian businesses were actually helping enforce gender apartheid. That’s a debate on the facts.
Astoria can argue Rendor punished the wrong company, though; the subsidiary (Castell Drywall) had no real involvement, only the parent did (Castell Group). It can also say sanctioning before the coup is retroactive punishment of lawful pre-coup business.
Tip: Search investment arbitration cases on regulatory takings and permanent deprivation of use.
Third: Did Rendor illegally enter Astorian waters?
Do Rendor’s naval rescue missions in Astorian territorial waters violate international law, even if they’re trying to save drowning people?
Astoria says Rendor violated its territorial sovereignty by going into its waters without permission.
Rendor can confidently argue there’s a duty to rescue people in peril even if you have to enter territorial waters to do it (UNCLOS Article 98 and custom). Astoria will have a harder time denying that.
It will also say it’s allowed to pass innocently (UNCLOS Article 19), but Astoria will argue this doesn’t count as innocent passage.
So Rendor must prove it was actually rescuing people in danger… not just looking to catch people trying to leave.
Tip: The innocent passage arguments turn on intent and evidence.
Fourth: Is there an international law rule against gender apartheid?
Rendor’s big argument is obviously that Astoria is committing gender apartheid which is illegal.
The thing is, there’s a treaty rule against racial apartheid but not gender apartheid (yet?).
Rendor can try to convince the ICJ that a binding rule of customary law has developed from things like CEDAW, human rights treaties, UN General Assembly resolutions, government statements, scholarly consensus… and the UN General Assembly voting 144-8 against recognizing the new Astorian government.
The issue isn’t arguing Astoria’s doing anything wrong – of course it is. But getting the ICJ to call it gender apartheid (as opposed to gender discrimination) might be more of a struggle.
Tip: Opinio juris will be the hardest to prove here — find statements that can be interpreted as evidence states believe they are legally obligated to ban gender apartheid.
If you found this useful, share with anyone participating in Jessup 2027 (or former participants for a bit of nostalgia!)