Hello Delegates,

Welcome to this year¹s Yeshiva University National Model United Nations International Court of Justice simulation (we¹ll shorten that to YUNMUN ICJ). My name is Jason, and I will be your host for the coming events.

First, a word about your chairman. I am a senior here at Yeshiva College and have been involved with YUNMUN for some eight years now first as a high school delegate and subsequently as a chair. Last year, I had the honor of serving as the Undersecretary General of YUNMUN X, as you may recall.

Our committee stands distinct from the United Nations¹, and in turn YUNMUN¹s, other General Assembly and Specialized commissions. The nature of our work dictates a different type of session, one that many might deem "more exciting", "cooler", or just plain "different" from the other meetings at this year¹s conference. The delegates who are selected to join the ICJ will be playing a variety of exciting roles, based upon decisions that each of you will make within the next few weeks.

The case that we have chosen this year has allowed us to alter the format of the ICJ simulation somewhat, and we are confident that these changes will enhance the experience. In its original format, the ICJ had its delegates often serve as justices, deciding a given case based on opposing arguments presented by our staff of college students. More innovative chairs altered that format somewhat, affording delegates an opportunity to participate in the presentation of the case itself. This year, however, delegates will have the opportunity to do it all. In addition to our assistant chair, we will have the largest staff of any committee on the conference to help organize your different teams and to play a variety of other roles throughout the trial. But, you will collectively have the opportunity to argue their country's case before a Court of approximately seven justices, some of who will be your peers.

Of course, the success of the ICJ in general, especially in light of this year's new format, depends upon your dedication and preparation. The rest of this briefing paper will provide you with some background information on the case that you will be arguing. The rest is up to you.
The enclosed briefing will concisely outline the role that the ICJ currently plays in the United Nations, the case to which we will be devoting ourselves for the next four months, and the role that each of you will play in leading up to and through this year¹s conference.
A note of warning. The roles that you will choose will differ dramatically in amount of pre-conference research and preparation, type of pre-conference preparation, and type of actual conference proceedings. Please think long or hard before you determine what you¹d like to be, and how you¹d like to do it. If this means nothing to you now, it will in ten minutes (see Section III).
You will all be united in that your roles will collectively contribute to a session that differs significantly form those of your fellow delegates in the United Nations. Your collective job description is pretty simple: Try and decide the case of

Aerial Incident: 10 August 1999
Pakistan v. India

Hope you all have a good time, and we will be speaking (by email or phone) within the coming weeks to finalize your decisions on the roles you will play in the ICJ proceedings, and further information regarding this case will be following.


Till then,
Your chair


Jason Cyrulnik
(718) 591-4325
eljay07@aol.com
I. The International Court of Justice:
An Operational Overview

The International Court of Justice derives its authority from the Charter of the United Nations, which established the ICJ as the final world authority on international law. The ICJ, also known as the World Court, is located in the Hague, Netherlands, and has been at the center of many crucial international disputes since its inception. The ICJ is the successor to the Permanent Court of International Law, which existed prior to the formation of the United Nations at the close of the Second World War.
The International Court of Justice is designed to serve several functions on the international legal scene. Its primary and most publicized role is similar to that of the US Supreme Court. In this capacity, the ICJ hears cases brought by one state against another and renders a binding decision as to the legal issues of the case. Although the ICJ has enjoyed some effectiveness in this role, its ability to have any lasting effect is limited by the fact that some countries do not feel bound to appear when sued in the ICJ, and, aside from an appeal to the Security Council of the United Nations, it maintains little decision enforcement capability.
Another, lesser known, function of the ICJ is its role in rendering advisory opinions on important international issues. In this capacity, according to its charter, the ICJ has the power, if called upon by an international entity, to render an opinion on a theoretical legal issue that is not specifically under dispute by two international entities. In this way, the ICJ has the opportunity to establish international law without specifically judging against any specific state. Also significant is that any international entity -- not only a State -- can request an advisory opinion from the International Court of Justice. And although the Court is not bound to render such an opinion when called upon, once rendered, such an opinion is certainly considered binding under international law. Decisions rendered in its first capacity also play the role of unofficially establishing various international conventions and ordinances.
The ICJ consists of some 15 justices who are chosen, on a rotating basis, from the different nations who belong to the United Nations. The judges are elected to nine-year terms of office by the United Nations General Assembly and Security Council sitting independently of each other. It may not include more than one judge of any nationality. Elections are held every three years for one-third of the seats, and retiring judges may be re-elected. The Members of the Court do not represent their governments, but are instead independent magistrates.
The judges must possess the qualifications required in their respective countries for appointment to the highest judicial offices, or be jurists of recognized competence in international law. The composition of the Court must also the principal legal systems of the world.
When the Court does not include a judge possessing the nationality of a State party to a case, that State may appoint a person to sit as a judge ad hoc for the purpose of the case (which explains the 14-2 ruling in our case (see below), despite the provision for 15 justices on the Court (see above)).


II. This Year¹s Case -- Aerial Incident: 10 August 1999
Pakistan v. India

A. Background & Fact Findings

On August 10, 1999 the Atlantique aircraft of the Pakistan navy was on what they have deemed a "routine training mission" with sixteen personnel on board. The mission consisted of a circular flight route that would necessarily bring it within a few kilometers of the India-Pakistan border.
The Atlantique aircraft was conducting scheduled instrument flight training. Thus, in accordance with standard operating procedure, Pakistan¹s civil airport, located in Karachi, was informed of the flight plan of the aircraft. The plane took off at 0915 hrs (Pakistan time). At approximately 1100 hrs that morning, the Atlantique was fired upon with air-to-air missiles by Indian air force planes. All sixteen personnel on board the aircraft, mostly young naval trainees, were killed.
Radar contact was maintained with the aircraft until it was lost at 1055 hrs. The general area of operation was approximately 70 to 90 miles east of Karachi. The aircraft was flying at a height of 7,000-9,000 feet, and was therefore visible to most radar technologies.
Once radar contact was lost with the aircraft, an intensive search was undertaken by Pakistani aircraft and helicopters at about 1206 hrs. The wreckage of the Atlantique was discovered by Pakistan¹s navy Sea King helicopters at around 1455 hrs, scattered across the area of a radius of one square kilometer. The wreckage of the plane was about 2 km inside Pakistan territory.


Application:
On the basis of the above facts, Pakistan submitted an application to the International Court of Justice against India on September 20, 1999. Pakistan has asked that the Court find India to have incurred legal responsibility for the breach of its fundamental obligations under the United Nations Charter, as well as those arising under bilateral treaties, apart from constituting a breach under well-established obligations of customary international law.

The particular legal grounds on which Pakistan bases its claim are as follows:

(1) Breaches of' the Charter of the United Nations
The facts on which Pakistan bases its complaint disclose serious violations of the various provisions of the United Nations Charter, particularly Article 2, paragraph 4, according to which all Members of the United Nations are under an obligation to refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State or in any other manner inconsistent with the purposes of the United Nations. India's alleged unprovoked and blatant use of force against an unarmed Pakistani aircraft over Pakistani territorial air space would seem to contravene the basic purpose of the United Nations, i.e., to maintain international peace and security and to develop friendly relations among nations.

(2) Breaches of the Bilateral Agreement
India's actions described above also allegedly constitute serious violations of the provisions of the Agreement concluded on April 6, 1991 between Pakistan and India on Prevention of Air Space Violations of which Article 1 enjoins both parties to ensure "that air violations of each other's air space do not take place." The Agreement rules out the use of force even in case a violation is believed by either side to have taken place. Article 1 also stipulates that "if any inadvertent violation does take place, the incident will be promptly investigated" and the other side's headquarters informed of the results "without delay."

(3) Breaches of the obligations of customary international law [Refraining from the use of force against another State]
India allegedly committed breaches of the obligations imposed on States by customary international law not to use force against another State. By attacking and shooting down Pakistan's unarmed aircraft within Pakistan's air space, without warning, and without any provocation on its part, all according to Pakistan allegations, India¹s actions constitute serious breach of that obligation.

(4) Breaches of the obligation of customary international law [Refraining form the violation of another State¹s sovereignty]
The alleged incursion into Pakistan's air space by the Indian air force jet fighters and their attack on, and shooting down of, unarmed Pakistan's naval aircraft on what Pakistan has claimed to be a routine training mission inside Pakistan air space constitutes violation of Pakistan's sovereignty and breach by India of its obligation under customary international law.

Pakistan has thus requested of the Court to judge and declare as follows:

(a) that the acts of India (as stated above) constitute breaches of the various obligations under the Charter of the United Nations, international treaties (the Bilateral Agreement), and customary international law (on the two accounts outlined above), all specified in the body of their Application, for which the Republic of India bears exclusive legal responsibility;

(b) that India is under an obligation to make reparations to the Islamic Republic of Pakistan for the loss of the aircraft and as compensation to the heirs of those killed as a result of the breaches of the obligations committed by it under the Charter of the United Nations and relevant rules of customary international law and treaty provisions.

B. ICJ & The Jurisdictional Finding

India responded to the proceedings initiated against it by claiming that the case was not subject to the jurisdiction of the ICJ for a number of reasons. India submitted its response by letter on November 2, 1999. The Agent of India notified the Court that his government "wish[ed] to indicate its preliminary objections to the assumption of jurisdiction by the . . . Court . . . on the basis of Pakistan's Application." Those objections, set out in a note appended to the letter, were as follows:

"(i) That Pakistan's Application did not refer to any treaty or convention in force between India and Pakistan which confers jurisdiction upon the Court under Article 36 (1).
(ii) That Pakistan's Application fails to take into consideration the reservations to the Declaration of India dated 15 September 1974 filed under Article 36 (2) of its Statute. In particular, Pakistan, being a Commonwealth country, is not entitled to invoke the jurisdiction of the Court as sub-paragraph 2 of paragraph 1 of that Declaration excludes all disputes involving India from the jurisdiction of this Court in respect of any State which 'is or has been a Member of the Commonwealth of Nations.¹
(iii) The Government of India also submits that sub-paragraph 7 of paragraph 1 of its Declaration of 15 September, 1974 bars Pakistan from invoking the jurisdiction of this Court against India concerning any dispute arising from the interpretation or application of a multilateral treaty, unless at the same time all the parties to such a treaty are also joined as parties to the case before the Court. The reference to the UN Charter, which is a multilateral treaty, in the Application of Pakistan as a basis for its claim would clearly fall within the ambit of this reservation. India further asserts that it has not provided any consent or concluded any special agreement with Pakistan which waives this requirement."

The Court ruled on November 24, 1999, that it would first decide the jurisdictional issue before hearing the merits of the case.

The arguments in the jurisdictional case were heard by the court for some four days (April 3-6, 2000). On June 21, 2000, following lengthy deliberations, the ICJ offered a 14-2 decision ruling in favor of India¹s defense:
"The Court . . .
Finds that it has no jurisdiction to entertain the Application filed by the Islamic Republic of Pakistan on 21 September 1999."
IN FAVOUR: President Guillaume; Vice-President Shi; Judges Oda, Bedjaoui, Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Buergenthal; Judge ad hoc Reddy;
AGAINST: Judge Al-Khasawneh; Judge ad hoc Pirzada.

The opinion of the justices did implore both sides to resolve the issue and stressed that its lack of jurisdiction should not affect their willingness to do so.

III. YUNMUN¹s ICJ Proceedings

We pick up on that very ICJ request and appeal for a bilateral resolution to the case. In light of the judgement issued by the ICJ¹s on June 21, 2000, it would seem that we have no case to try. In truth, however, it is because of that very judgment that we will be hearing the case from scratch this coming February. The ICJ¹s decision to bar hearing the case on jurisdictional grounds leaves us with a wide-open case. In our simulation, we will proceed as the International Court of Justice, assuming that there are no jurisdictional obstacles (in accordance with the opinions of Judges Al-Khasawneh and Pirzada).

The dispute per se is a very interesting and pressing one. It can have lasting effects on the future of India-Pakistan relations. These two nations have been in a protracted conflict, leading to three full-scale wars, for decades. A dispute over the status of the province of Kashmir, in particular, has inflamed passions and highlighted differences between a predominantly Muslim population in Pakistan and Hindu population in India.

It addition to this more parochial matter, any ICJ decision, and this one will be no exception, holds potential precedents that serve a tremendous role in concretizing the vague body of international law that was discussed above. Aerial incidents are all too common in today¹s day and age, and this particular incident raises crucial issues that our court must address and rule upon. Those two consequences in mind, you will be the ones playing this crucial role.

A third of our court¹s delegates will assume the role of justices, who will ultimately be deciding on these matters. Your opinion(s) (the procedures for writing opinions will be outlined at the conference sessions) will impact upon the two aforementioned issues to a great extent.

Our justices¹ opinions, however, will be influenced by the case that is presented before them in the first 2 - 3 committee sessions at this year¹s conference. The remaining delegates will be putting on that case, as attorneys, witnesses, etc. A third of our delegates will be representing the nation of Pakistan as you continue the proceedings that your country initiated before this International Court of Justice, and one-third of the delegates will take on the Indian defense before the court.

Thus, to review:
The first challenge with which you have been presented is to decide whether you would like to serve on our court as a justice, or play the crucial role of representing one of the two parties [Pakistan or India] before our court.

A Few Guidelines
Attorneys will be preparing a case from scratch. Of course, the case history that has been included with this briefing is a key start. The information sources in the final section will serve as the primary starting points for your research in the two areas that you will focus on the facts of the case and the pertinent international law. The rest will be detective work and dressing. You will have to use the information that you find regarding these two cases to prepare opening statements, witness requests, direct and cross of witnesses and closing arguments.

Justices will be doing much less research during the months preceding the conference. Your research will almost exclusively focus on the international law (statutes and treaties) pertinent to aerial incidents between nations. Justices should not be investigating the facts of this particular case at all. Your findings regarding the application of the law that you research and that is presented at the trial should depend entirely upon the case tried before you by your peers Pakistan and India.

In addition to the disparity between your roles before the conference, at the conference different sessions will focus on different delegates. The bulk of the sessions will focus on the case put on by the two teams of attorneys. Justices will have questioning time, etc. (as we will outline during the trial procedure rules at our first session).
The final session or so will involve the deliberation of the justices and the writing of their opinion(s).

When making your decisions, bear in mind these different roles. They involve different skills and different levels of time devotion . Both will require a real commitment on your part.

Please email me or call me and let me know what your preference would be
(a) Pakistan Case (Legal Representation)
(b) India Defense (Legal Representation)
(c) ICJ Justice

Attorneys:
After having submitted your preference requests to me, you¹ll be sent a list of the breakdown of our delegates and their respective roles. You will have been chosen to serve as Attorneys for one of the two sides.
The information included in Section II of this briefing serves to highlight the known facts of the case. Because the ICJ ruled to hear the jurisdictional issue before the facts of the case, both sides never presented their full sides and fact-findings and contentions in a public forum, certainly not in the ICJ. India, in particular, has released very little information on their responses to the Pakistan¹s claims and evidence.
This can be both a disadvantage and an advantage for us. Shortly after we divide our committee delegates amongst the three different teams of delegates, I will send the attorneys for each side a list of facts that will be assumed entirely true for purposes of the case. Many of the facts will be based upon what we know, or what seems to be actually fact. Other pieces of evidence, however, will be created and included on the fact-finding sheet. Each piece of evidence will be in the form of an affidavit, video evidence, and the like. You will work your cases from those facts and issue into evidence the relevant facts in court to our committee. Obviously, there currently are and therefore will ultimately be two legitimate sides to arguing this case even after those facts are issued. You must use the facts to your advantage Pakistan¹s attorneys must paint a case that should indicate India¹s violation of international law and use the facts to support that claim, and India¹s attorneys must be able to respond to those claims and get their country off the hook. It will be your ability to paint the facts in the proper light, to respond to the claims of the other side, and to detect the nuances that will be latent in the fact findings that I send you to your advantage. That¹s where your detective skills will play a role. Your attorney skills will kick in at the conference.

Your roles will be divided into three stages after having been assigned to one of the attorney teams:
Immediately: Research, along with the 3-4 other members of your team the facts of the case. Any essential facts that you find that you think are unique, send me periodically. If I confirm them, then they will play a big role in establishing my facts sheet and cater your sides to your line of anticipated argumentation.
After receiving the fact-finding sheet: Study the fact. Put together your case work individually and then try to make some preliminary inter-delegate contact. Any evidence not touched on the fact-finding sheet is fair game. You can bring whatever you can find that does not contradict the accepted evidence. Think about what witnesses and materials you will need and speak to each other.
At the conference: We will go through procedure at our first session




Justices:
After having submitted your preference requests to me, you¹ll be sent a list of the breakdown of our delegates and their respective roles. You will have been chosen to serve as ICJ justices.
This might be tough, but it¹s key: Avoid research on the facts. You will not get copies of the fact-finding sheets. A key skill in your ability to carry through on your mission will be evidenced from how much weight you give to the case presented before you in your decisions. Any evidence upon which you will base your decisions must be presented in the ICJ this February. Law, however, is important for you to know. The more you know, the better you will be able to direct your questions and deliberations (e.g. what needs to be established for a violation of international law in an international aerial shooting).

At the trial, you will be required to think fast and come together in deliberations with a solid handle on the facts and an even more solid handle on the law relevant to the case. You will have opportunities to question the witnesses and attorneys. You will have the option of requesting witnesses toward the end of the trial. But, it is the job of the attorneys to use the fact sheets to present their sides of the case and your job to judge who does a better job presenting, responding to opponents¹ arguments, and interpreting facts.

A Note of Closing to All Delegates
Please contact me within a week of receiving your booklets to submit your requests (the faster you get it in, the better chance you¹ll have to be assigned to your requested slot). If you have any further questions about the different roles, I¹m here for you. The ICJ website is www.icj-cij.org. There you can get further information about the ICJ, its history and function, the case at hand, and relevant international law from links on the site. More will come with the fact-finding briefs and information packets. Till then