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Simulating Multilateral Treaty Making in the Teaching
of International Law
TIMOTHY LH MCCORMACK* & GERRY
J SIMPSON **
INTRODUCTION
The general course in Public International Law has not traditionally been
considered a “black letter law” subject along
the lines of the
legislation and case law based domestic law subjects in most Australian Law
School curricula. Despite the general acceptance among international law
educators that international law is much more than simply a set of
rules,1 teaching methods in the subject, at least in
Australia, have rarely focused on the actual practices of international law,
particularly
the peculiarities of the process of international law
making.2 Indeed, a clinical international legal
education program has yet to be developed anywhere in Australia.
This lack of
attention to teaching about the making of international law poses a particular
problem in the area of multilateral treaty
making. Treaties are one of the four
major formal sources of international law3 and,
increasingly, are seen as the most significant component of the international
legal order. An understanding of the principles
of treaty law is fundamental to
any analysis of the substantive provisions of an individual treaty and therefore
indispensable to
any student of international law. Yet, the methods and
processes by which treaties emerge remains relatively unexplored in the
discipline. This can be contrasted with scholarly activity in domestic law where
“emergence
studies” into national legislation is a thriving
field.4
Accompanying the predominance of treaties in
international law is the associated proliferation of international
organisations. These
organisations vary in scope and subject matter. The UN
itself is, of course, the quintessential global, multi-faceted multilateral
organisation. Other global organisations, usually in some affiliation with the
UN, are issue specific such as the World Trade Organisation,
the Organisation
for the Prohibition of Chemical Weapons and the International Labour
Organisation. Other multilateral organisations
have a limited membership based
on, for example, geographic location (the European Union), commodity production
and export (Organisation
of the Petroleum Exporting Countries) or level of
economic development (Organisation for Economic Co-operation and Development).
Whatever their nature or mandate, every significant organisation created since
1945 has been established after a process of multilateral
treaty making.
Understandably, international lawyers have focused on the constitutive
instrument in order to interpret and evaluate
the work of the organisation.
Again, however, the teaching of international law has tended to under-emphasise
the process by which
these organisations come into existence through the
negotiation of a multilateral treaty.
In this article we suggest that the
use of simulations offers at least one means by which this over-emphasis on
doctrine at the expense
of practice can be remedied. Through simulations
students can understand that process is vital to an adequate comprehension of
the
political context in which international law operates and the legal forms
which international law adopts and utilises. This is, of
course, true of all law
teaching. To some extent, this article advocates the use of simulations
generally and not just in international
law5 because in
Richard Ingleby’s words: “Simulation is a direct way of
demonstrating the links between the legal world and
the non-legal
world”.6
Simulations have been used
extensively in law school teaching for many years. The archetypal law school
simulation — the moot
— has been an integral part of Australian law
school curricula since the inception of tertiary studies in law in this
country.7 Since then, academic colleagues have made
extensive and creative use of simulation techniques to teach procedural as well
as substantive
issues and this is as true in international law as it is in other
subject areas.8
In this Article we intend to
describe how we have drawn on these previous efforts to devise a simulation
exercise aimed at redressing
the lack of emphasis on process and negotiation in
the teaching of international law and organisations.9
We begin by offering some possible explanations for the absence of a
drafting/process component in International Law curricula and outline the
background to our drafting/process module. We then describe in detail the
structure, logistics and content of a particular
simulation exercise we run
involving the drafting of the Statute for an international criminal court. We
identify particular problems
that have arisen in the course of successive
experiences with this particular exercise and offer the solutions we have
implemented
in response to these problems. Every use of the exercise has been
successful and we conclude the essay with an evaluation of the
benefits of
adopting this form of teaching.
WHY PROCESS OR DRAFTING IS NOT TAUGHT
The doctrinal focus of much international law teaching can be explained partly by the difficulties inherent in any attempt to teach process and negotiation. Communicating information about legal rules and principles is, on the whole, more straightforward than engaging students in the simulated practice of international law. We have identified the following reasons, in particular, for the hesitancy to use this teaching method more readily.
Time-Commitment Involved
A successful simulation exercise on the negotiation of a draft multilateral
treaty requires a substantial time commitment on the part
of both teachers and
students. Teachers need to identify an appropriate subject for negotiation
— either from an existing multilateral
negotiation process or by creating
a hypothetical subject and process. We have always used an actual negotiation
process in order
to maximise the benefit of existing materials. There is added
benefit too in that a current process is usually known by at least
some of the
students and involvement in the simulation will encourage students to more
closely follow the real negotiation process.
Even with the adoption of a current
negotiation process, however, the advanced planning for the exercise can be
administratively
burdensome.10 The sheer logistics of
identifying appropriate materials for each student, copying relevant numbers of
each document, distributing
the correct documents to each student and scheduling
time to clarify aspects of a particular country brief for students involves
a
substantial amount of time and effort.
In addition, the amount of time the
actual exercise consumes is a factor for consideration. If the exercise occurs
during normal class
time, a teacher would need to allocate a substantial
proportion of the lecture/seminar time allocated to the subject. The most
successful
simulation exercises we have been involved in have usually taken one
whole day. In the context of an intensive graduate course on
the Law of
International Organisations, for example, one day of “negotiations”
to establish a new organisation in the
context of the rest of the course has
worked very well. We cannot envisage a successful simulation split over several
weeks and this
automatically raises problems for undergraduate or graduate
teaching where courses are often allocated only a 1-2 hour teaching slot
per
week. While it might be possible to organise a simulation exercise outside of
the normal class time (for example, a whole day
on a weekend or during a
non-teaching period) this would inevitably exclude some students from the
exercise.
Lack of Exposure to Negotiation Processes
A successful simulation will also rely on the experience and knowledge of the
teacher(s). Clearly, inside knowledge is invaluable
not least because it permits
the teacher(s) to devise a simulation that more closely resembles the reality of
negotiation and also
allows them to compare the simulation to that reality in a
debriefing session. We have been fortunate to attend key moments of multilateral
institutional design as advisers to the Australian Government. In relation to
the International Criminal Court in particular, these
opportunities have
included successive periods at the Sixth Committee of the UN General Assembly in
New York, numerous departmental
briefings in Canberra and the Conference of
Plenipotentiaries in Rome.11
This level of
involvement is unusual but not unprecedented in Australia. Many of our
Australian international law academic colleagues
have close working
relationships with the international law offices of relevant government
departments (particularly the Department
of Foreign Affairs and Trade (DFAT),
the Department of Defence and the Attorney General’s Department) which are
often keen
to encourage academic involvement. Indeed, several of the early
simulations we developed were partly devised by DFAT legal officers
and these
individuals have attended several simulations, often adopting roles or acting as
advisers to student representatives.
The other obvious benefit of such
collaboration is the increased availability of source material. Conversely, the
lack of access to
such material can act as a disincentive to the use of
simulations. Again, the solution to this must lie in ongoing cooperation between
academics in order that knowledge and material can be distributed as widely as
possible. The current article is an attempt to contribute
to this process.
Motivation, Unpredictability and Coverage
Other possible deterrents include the suspicion that students may not be
sufficiently motivated to make the simulation work and the
sense that such
events are rather unpredictable. The question of motivation is one worth
raising. In our experience, simulations
work only when students engage with the
activity and take it seriously. If students are already motivated by a course of
learning,
the simulation is likely to be successful but even where a class has
lacked sparkle, simulations can inspire renewed interest in
the subject-matter.
This is partly attributable to the fact that simulations are invariably
entertaining as well as edifying. However,
simulations also allow students to
speak in a different voice or adopt a fresh persona. This can liberate
otherwise diffident students to speak more freely that they would otherwise have
been inclined to do. We have
often observed that student contributions in a
course become more regular and fluent after a simulation.
Simulations are, of
course, unpredictable. In this, they are rather like practice itself. This makes
them risky, ad hoc and experimental. They can also be somewhat emotional
affairs. Teachers may have to relinquish their control over a course for a
period. This is not always easy but one clear advantage of the simulation is
that it is a departure from the centralised model of
teaching where the teacher
is principally a disseminator of information. In the words of one teacher,
“[s]imulations can transform
students from passive, detached observers
into involved participants in the learning
process.”12
The teacher concerned with getting
through a mass of material in a course will find simulations an unappealing way
to teach international
law. Students teach themselves more slowly than we can
teach them. But they teach themselves more effectively. So, while a simulation
may take a large proportion of the time allocated to the unit and while the
coverage of material will be unpredictable, all of this
is offset by the deeper
level of self-education engendered by the
simulation.13
BACKGROUND TO INVOLVEMENT
Reflecting upon our development of the simulation exercise on the negotiation of a draft statute for an international criminal court, we have identified several shared experiences which have contributed to a “gestation period” fundamental to the emergence of this exercise. A brief account of some of these key experiences will help explain both our conception and our development of the exercise:
Earlier Simulations in International Law
When the UN General Assembly declared the 1990s “The Decade of
International Law”, Member States of the UN were asked
to implement
measures to promote the teaching of International
Law.14 As part of its response to this request, The
Australian Department of Foreign Affairs and Trade helped to organise a number
of international
law simulation exercises in Australian Law Schools. We
participated in two such exercises in 1992 and 1993 in the Law School at the
University of Melbourne. Both exercises simulated meetings of the UN Security
Council. The first involved a debate in the UN Security
Council on the question
of whether to impose economic sanctions on Libya for the failure to surrender
the two Lockerbie bombing suspects
to the governments of the UK and the US. The
second involved a hypothetical debate about the admission of Taiwan and
Palestine to
the UN.
These two UN Security Council simulations were both
extremely successful experiences and introduced us to the educational
possibilities
of simulation exercises in international law. We subsequently
attempted a number of simulation exercises in two international law
related
subjects — Human Rights Law and Current International Legal Problems.
These exercises included arguments before the
UN Human Rights Committee on the
Toonen Case15 pursuant to Australia’s accession
to the 1st Optional Protocol to the International Covenant on Civil and
Political Rights
and a war crimes trial of Lt William
Calley16 charged with offences in relation to the My
Lai massacre in Vietnam. Again we observed that students responded
enthusiastically to
these initiatives and many students have cited the exercises
as foremost among their personal highlights from the courses.
Exposure to Multilateral Negotiations
Our participation in various negotiations exposed us to the idiosyncrasies of the multilateral process — the unwritten rules of multilateral diplomatic etiquette, the practical application of the principle of sovereign equality of States, the complexities of delegation flexibility within the parameters of the negotiating brief, the creation of sometimes unexpected coalitions of States to pursue common negotiating positions, the diversity of strategies to encourage particular States to change their positions on specific issues. As a consequence, we recognised the significance of the process of multilateral negotiation to an understanding of the making of international law. Our increasing familiarity with the process emboldened us to attempt to teach aspects of the process through the technique of simulation.
Access to Primary Materials on the International Criminal Court
An additional benefit of participation in “real” multilateral
negotiation processes, particularly in the Sixth Committee
discussions of the
International Law Commission’s Draft Statute for an International Criminal
Court, was the access to primary
materials for the simulation exercise. National
delegations making formal statements in the course of Sixth Committee debates
invariably
provide written copies of their statements. These statements do not
become official UN Documents, are not allocated UN Document numbers
and are not
available commercially through the usual channels for distribution of UN
Documents. Copies of the statements are often
only made available after a
statement has been formally presented in oral form. Consequently, unless an
individual, present throughout
the entirety of a debate on a particular agenda
item, makes a concerted effort to collect a comprehensive set of the statements,
it is very difficult to acquire them.
We were able to collect three
incomplete sets of delegation statements from the 48th, 49th and 51st sessions
of the UN General Assembly’s
Sixth Committee debates on the question of an
international criminal court and these documents have been indispensable to the
success
of the exercise. The formal documents from the debates on the
international criminal court, particularly the text of the draft statute
itself,
are of course readily available in the public domain. However, the individual
delegation statements, which are much harder
to acquire, make it possible to
assign specific country roles to participating students and to provide each of
them with an indication
of their “State’s” position on the
issues under discussion.
PRELIMINARY STEPS FOR THE SIMULATION
We have developed a particular exercise that involves a simulation either of UN General Assembly Sixth Committee debates on, or the Preparatory Commission negotiations for, a permanent international criminal court. Here we identify and explain the specific steps we have undertaken in preparation for the simulation exercise.
Preparation of Materials
One key preparatory step for the simulation exercise is to identify the materials students will use in the exercise and gather those materials for distribution. We have prepared appropriate numbers of copies of the following documents:
Presentation of Background Lectures
We have found it helpful to provide one or two lectures as background
preparation for the simulation exercise. These lectures have
concentrated on an
introduction to both the concept and the process of multilateral negotiation as
well as upon the arguments for
and against an international criminal court, a
critical evaluation of past unsuccessful attempts to create such a court, a
brief
overview of the negotiating history of the draft statute and,
particularly, the key issues of contention we have made the subject
of the
simulation exercise. Here we have identified and attempted to explain different
national positions in relation to the definition
of war crimes, crimes against
humanity and genocide; the consent of particular States for the initiation of
criminal proceedings;
and the relationship between the UN Security Council and
the Court.
The lectures have always helped students participating in the
simulation exercise gain a greater sense of familiarity and, as a consequence,
confidence with the substantive issues the subject of the simulation exercise.
We have attempted to present the lectures some days
prior to the exercise itself
to allow students the opportunity to follow-up the lectures with their own
reading of the secondary
sources referred to above.
Explanation of Exercise and Allocation of Roles
At some stage prior to the actual day of the simulation exercise, we have
held a session to outline the proposed agenda, to explain
the way in which we
propose to conduct the exercise and to allocate specific country roles to each
of the students. In allocating
country roles we have regularly assigned one
student only to each of the developing States and the smaller developed States
and at
least two students to each of the five permanent members of the UN
Security Council and the larger developing countries (for example,
Germany,
Japan, Canada). We have regularly allocated more students to the US delegation
than to any other State and on occasions
have had up to five students
“representing” the US with no more than 2 students
“representing” any other
single country.
These disparities in
relative sizes of country delegations are indicative of our attempts to
replicate at least some of the realities
of multilateral negotiations. The more
influential States regularly have much larger delegations than smaller States
and the US routinely
has delegations which dwarf almost all other States in
terms of numbers of personnel. The actual number of States
“represented”
in the simulation and the number of students allocated
to each delegation is ultimately dependent upon the number of students
participating
in the exercise. We have found that 30 or more students
representing 20-25 States is ideal but we have also conducted successful
exercises with as few as 14 participating students.
In the explanatory
session we also attempt to describe some of how multilateral negotiations work
— both in terms of procedure
and conventional forms of negotiation as well
as in terms of the pursuit of national objectives and priorities. Although this
session
is necessarily brief and somewhat superficial, it is also important for
the overwhelming majority of students uninitiated in the
process of multilateral
negotiations many of whom may be apprehensive of what is expected of them
personally in the simulation exercise.
CONDUCT OF THE SIMULATION
Prefatory Sessions
The simulation exercise cannot commence without the appointment of a
chairperson. We have usually selected a confident and articulate
student for
this role but, on occasions, we have also used a government official experienced
in multilateral negotiations and invited
to participate in the simulation
exercise. The role of the chairperson is critical to the success or otherwise of
the exercise because
we do not use formal rules of procedure for the conduct of
the exercise and this person exercises their own discretion as to the
way the
meeting will be conducted and take its decisions. The chairperson directs the
discussion, calls for statements on particular
issues, has the responsibility to
move through the agenda concluding discussion on specific items and initiating
breaks in the plenary
sessions for informal consultations when impasses emerge,
and to call for votes on specific issues when required. If a student is
chosen
for the task they will invariably need some brief instruction on how to perform
their responsibilities but it has always been
an encouragement to us to see
particular individuals rise to the opportunity afforded them in this
role.
The formalities of the exercise commence with
“representatives” of States taking their seats behind their State
namecards
(arranged in English alphabetical order as occurs in most multilateral
negotiations) with the chairperson calling for 2-minute statements
from each of
the delegations. This brief statement reflects the particular State’s
position in relation to the creation of
a permanent international criminal court
and to some of the substantive issues under discussion. The students base their
own statements
on the country statements they have already received and it is
the responsibility of the chairperson to ensure that “delegates”
do
not take an excessive amount of time. The length of time for this initial
session will obviously depend upon the number of State
delegations but these
have often occupied up to one hour.
After the initial session of introductory
statements, we have often had the chairperson instruct “delegates”
to break
for informal discussions and caucusing with “like-minded”
States. This informal session is the first of several throughout
the exercise
and we have encouraged delegates to use morning and afternoon tea breaks and the
lunch break to continue with informal
discussions. We have played a role
ourselves as “capitals” for all delegations so that they can
approach either of us
at any time with requests for advice or clarification as
to their national position on any particular issue. Delegates tend to use
this
resource on a regular basis as a way of confirming their own ideas and
initiatives on particular issues. We also take a more
active role and approach
delegations with suggestions about positions they should initiate or support to
alter the dynamic of a discussion
in relation to a particular issue. For
example, we regularly approach the larger delegations and suggest that they
threaten specific
developing States’ delegates with cancellation of aid
programs or with the imposition of economic sanctions if those States
do not
change their position to support particular initiatives in the discussions.
In the initial informal discussions after the plenary session on
introductory statements, we arrange for the chairperson to indicate
that
delegations will be asked to nominate cities for the seat of the court and that
they should caucus within their State’s
geographic grouping, and lobby
beyond that grouping, for nominations they wish to promote. It is always
intriguing, and often humorous,
to observe what proposals particular groups of
students produce from these discussions. On one particular occasion the
“representative”
of Slovenia wanted to nominate her own capital for
the seat of the Court but then, embarrassingly for her and for her
“country”,
had to check what the name of the capital city actually
was! On another occasion separate delegations in the simulation nominated
Melbourne and Sydney for the seat of the Court and the debate at Australian
Federation about the national capital was replicated
all over again. Other more
interesting and better conceived proposals have included Nuremberg, Tokyo and
several capitals in the
Developing World.
After a period of up to 30
minutes, we have the chairperson call the meeting to order and to ask for
nominations for the seat of the
court. Delegations nominating host cities are
asked for a brief statement articulating the rationale for their particular
nomination.
We leave the nominations of host cities entirely to the creativity
of the students themselves. If there is only one nomination, that
host city is
elected unopposed by decision of the chairperson. We have seen that outcome only
once after some sustained and clearly
effective lobbying by one delegation in
the informal discussions. It is much more common for there to be multiple
nominations, all
usually supported with creative and thoughtful arguments as to
the relative merits of the nomination.
Definitions of Crimes
Once the host city for the Court is appointed we move to the first substantive issue for the exercise — the definitions for the crimes making up the subject matter jurisdiction of the Court. The crimes in the draft statute for the Court were genocide, war crimes and crimes against humanity. In some exercises we have chosen just one of the three substantive crimes and concentrated on the negotiation of that definition because of time constraints. In other exercises we have dealt with the definitions for each of the three “core crimes”. Naturally, the definitional problems are different for each crime. For genocide, for example, the draft statute relied exclusively on the definition incorporated in the 1948 Genocide Convention.20 Criticisms of the limits of this definition have focused on the high threshold mental element of the requisite specific intent to destroy “in whole or in part” the victim group as well as on the exhaustive and, therefore exclusive, list of target groups the subject of the genocidal activity. In relation to war crimes there were issues about the extension of the Court’s jurisdiction beyond international armed conflicts to also cover internal armed conflicts. There was also uncertainty about the scope of the Court’s jurisdictional competence in respect of the means and methods of warfare — for example, the use of certain weapons types, the targeting of protected objects and/or persons, perfidious use of protected emblems and the question of proportionality and military necessity.
Exercise of the Court’s Jurisdiction
Another key issue for discussion has been the various options for the
exercise of the Court’s jurisdiction — otherwise
known as
“triggering mechanisms”. Here the draft statute envisaged two
relatively non-controversial options — a
complaint from a State Party
alleging a violation of the Statute of the Court or a referral of a situation by
the UN Security Council
for the investigation of the Prosecutor of the Court.
The third proposed trigger, and much more controversial than either of the
other
two proposed triggers, was that the Prosecutor be authorised to act proprio
motu — or on her own initiative — to investigate a possible
commission of a crime within the subject matter jurisdiction of
the Court.
This question of triggering mechanisms is inextricably linked to the
question of the consent to the exercise of the Court’s
jurisdiction. There
were issues about whether States Parties ought to automatically cede
jurisdiction to the Court over some or all
of the crimes in the Court’s
Statute ipso facto as States Parties to the Statute or whether they
ought to be entitled to select the specific crimes they will cede jurisdiction
over
and which they will not. There was an additional issue about non-States
Parties to the Statute of the Court — particularly
where one of more of
the territorial State, the custodial State and the State of nationality (of the
accused) are not party to the
Statute of the Court.
Relationship Between the Court and the UN Security Council
One of the final issues the students negotiate is the precise relationship
between the UN Security Council and the international criminal
court. After the
students have broken for informal discussions and negotiations, we have often
arranged for the chairperson to call
the meeting together and to ask delegations
for statements on the wording of the relevant provision of the current version
of the
draft statute for the court. The earlier versions of the Draft Statute
prior to the Rome Diplomatic Conference on the International
Criminal Court
envisaged the court being precluded from considering any situation currently
under consideration by the UN Security
Council. Such a provision could have
seriously limited the potential jurisdiction of the Court because “under
consideration”
by the Council could be interpreted to mean any situation
listed on the agenda of the Council whether or not the Council was actively
considering the situation in debates. Students are invited to accept the status
quo or to come up with some alternative proposal
which may still allow some
capacity for the Council to block the court’s consideration of a situation
but on the basis of a
more onerous formula.
Because this session has usually
been the final substantive session in the exercise we have often been in the
situation of having
to rush our deliberations. However, the issues here are
particularly interesting and conducive to creative and intriguing compromises
to
bridge the gap between apparently polarised positions. Consequently, we have
attempted to save at least 30–45 minutes for
the negotiations and have
offered a 10–15 minute break for informal negotiations where this has
seemed appropriate.
Debriefing
We have always concluded the exercise with a “debriefing” discussion. This session enables us to talk through our perceptions of the benefits of the exercise and to give the students the opportunity to express their views about their experiences. We have taken the opportunity to help some individuals emerge from the national roles they have so enthusiastically embraced and to remind others that any frustrations with delegates from other States encountered in the exercise ought not to spill over into interpersonal relationships outside the limited context of the exercise. It is always encouraging to hear students speak of what they have learned through the exercise and we have often received invaluable feedback with suggested improvements for future exercises.
PROBLEMS AND POSSIBLE SOLUTIONS
In this section we identify a series of problems and possible solutions associated with our use of this particular simulation. It should be borne in mind that these problems have often occurred only intermittently or have been revealed to us only through consultation with the students after the simulation is completed.
Inadequate Background and Expertise
It is usually the case that students have relatively little background in
either multilateral negotiations or the history and politics
of the State they
are purporting to represent. This can lead to either a lack of confidence on the
part of students or a tendency
to enter the realm of the fantastic in adopting
debating positions. To avoid this, teachers must provide adequate briefing
papers
in good time for students to absorb these papers and develop positions. A
prior lecture combined with some accessible secondary materials
on both
substantive and procedural issues is vital if students are to enter the
negotiations with sufficient knowledge and skill.
Needless to say, no set of
briefing papers will ever be complete (this is, after all, the experience of
negotiators and diplomats
in real life) and students must be encouraged to
improvise while remaining faithful to the material before them.
We have
found that the general diffidence or shyness of students can be overcome using
two techniques. One is to have each representative
make an opening statement of
about a minute in duration. Students immediately feel part of the debate having
had their voices heard.
The second technique we have employed is to begin the
simulation with a technically straightforward and non-legal issue where students
can afford to make ingenious or imaginative suggestions without feeling too
constrained by the material. In many cases involving
the ICC, we have used a
debate about the location of the Court to help students relax. This exercise
also serves a useful intellectual
end by revealing to students how few of the
UN’s primary institutions are situated in the Southern Hemisphere.
An
associated difficulty is that students, instead of improvising, become fixed in
rigid positions or arid debates. In these cases,
the simulation can lose
momentum and meander rather fitfully. One possible solution to this lies in
providing “instructions
from capitals” throughout the day in order
to steer the negotiations towards meaningful subjects. This is a role at least
one
of the lecturers can adopt for much of the day (see above).
Frustration of Participants
Either during or after a simulation, students will come to realise that “[t]hey do not possess the answers”21 or that the process is highly procedural, frustratingly slow, surprisingly informal and inelegant. These are, of course, insights but it will not always be clear to students that these are valuable conclusions. It is important that teachers engage in a serious debriefing at the conclusion of the simulation. In this period, the teacher must emphasise how realistic an exercise the simulation has been and, in particular, she must ensure that students use their frustrations productively. A simulation is a small move from the controlled environment of a class-room where problems are presented and solutions outlined to a less controlled setting in which problems are very often not solved and issues are left hanging in the air. Simulations represent an advance from the comforts of formalism and should be presented in this light to potentially disenchanted students. De-briefings are important for the usual reason that passions can become highly inflamed when roles are adopted. A period of decompression is vital!
Lack of Time
Simulations are time-consuming exercises both in terms of preparation for the
simulation and the simulation itself. While we believe
this is time worth spent,
it can represent a significant proportion of the time allocated to a particular
subject or unit. In an
International Organisations course, it means devoting
around a fifth of the course to the International Criminal Court. This may
appear excessive, especially for an institution not yet functioning. On the
other hand, students do not simply learn about the Court
in participating in the
simulation. They learn about negotiation, about procedure, about establishing
institutions and about drafting
processes. So, even in terms of substance, to
say nothing of the skills acquired during the simulation, there is enormous
scope for
deep learning. In the International Criminal Court simulation, we have
remained immodest in relation to coverage seeking to explore
two or three issues
in real depth (jurisdiction, consent of States, relationship of the Court to the
UN Security Council) rather
than aspiring to what would inevitably be a
superficial view of the whole Statute for the International Criminal
Court.
In the case of a specific course on International Criminal Law, there
is the possibility of the greater luxury of being able to run
the simulation
across a longer period. We are yet to teach a course in International Criminal
Law but at least one, admittedly radical,
proposal would be to spend the entire
course on simulated negotiation of the whole Draft Statute for an International
Criminal Court
from establishment to the Final Act. There are, coincidentally,
13 Parts in the Rome Statute. An approach such as this would omit
a great deal
— for example, the Tribunals in Yugoslavia and Rwanda, the Nuremberg
legacy and inter-agency cooperation in fighting
transnational crime. However,
again, the sacrifice in coverage might be compensated by the unique potential to
engage in a single
drafting exercise in real depth.
Artificiality of the Exercise
We would not wish to claim too much for simulations. “A simulation
resembles something but is not the thing
itself.”22 One has to accept from the outset that
a simulation cannot entirely replicate actual negotiation and drafting. There
are severe time-constraints
that do not exist to the same extent in reality;
there are no second chances in simulated negotiations; cultural factors are
often
missing from simulations; inter-state histories do not wield the same
influence; and, realpolitik differentials are impossible to
reproduce
effectively in a simulated context. Again, the important point is to acknowledge
the artifice and explain the departures
from reality.
The nexus between law
and politics is one that can be explored rather usefully in post-simulation
briefings. Students tend to believe
either that the simulation was artificial
because it was “all politics ... there was no law ... the arguments were
too general
or too personal” or, conversely, that the arguments were
“too technical ... too legalistic ... unrealistically procedural
given the
weight of power politics.”
It seems to us that these impressions would
recur in the context of observing international negotiations at different points
and in
different situations. In other words, they are likely to be accurate for
some negotiations in some cases. There are cases of multilateral
treaty making
or inter-state negotiation where politics seems dominant and where law tends to
fall away, at least prior to the commencement
of more technical drafting
processes. One might say that the Cuban Missile Crisis is an example of this
sort of international negotiation.
However, in the case of the International
Criminal Court negotiations legal arguments carried a surprising amount of
clout. The negotiators,
drafters and diplomats in Rome viewed themselves as both
State representatives and lawyers engaged in a collective endeavour. Sometimes,
this latter role assumed the primary significance and politics became the absent
partner.
One rather acute problem facing us in future is caused by the
success of the Rome Diplomatic Conference. The Rome Statute is now open
for
signature and ratification. There is little left to negotiate on matters of
substance. How should we proceed with future simulations?
One possibility is to
run mock-trials of suspected war criminals but this would be a quite different
sort of exercise and would not
achieve the aims we have in running the
simulation. Another possibility would be to ignore the fact that the Statute has
been finalised
and run the simulation as if the year was perpetually 1998. This
would, we fear, exacerbate the problems of artificiality. It may
be that we will
have to move to a different substantive area for future
simulations.
Alternatively, we may continue to use the Rome Statute for the
International Criminal Court but, instead, focus on domestic implementation
or
the mechanics of institution-building subsequent to agreement on the Statute.
This latter approach holds some promise for successful
future exercises. Prior
to entry into force of the Rome Statute, State Signatories will be engaged in a
Preparatory Commission process
with a mandate to attempt to define the crime of
aggression, negotiate the elements of each of the substantive crimes and agree
on
the Rules of Procedure for the new Court. It may well be possible to simulate
a negotiating session of the Preparatory Commission.
Alternatively, the Rome
Statute will be subject to future Review Conferences of the States Parties and a
useful simulation exercise
could focus on amendments to the definitions of the
crimes, additional crimes to be included in the Statute or other aspects of the
Court’s operation.
CONCLUSION
In any educational activity, the prior determination of goals is one of the
keys to success.23 In the case of the International
Criminal Court simulation what should these goals be? The literature on
educational objectives reveals
a taxonomy of possible goals or skills. These are
cognitive, performative and affective.24 Traditional
legal education has focused on cognitive learning (doctrinal, formalistic
problem solving and information gathering).
The performative and affective
objectives concerning “what students can do and how they feel and
experience a situation”
are insufficiently emphasised. The simulation
accomplishes all three if done correctly.
The students clearly absorb the
doctrines and rules in a meaningful context (cognitive learning).
Students who negotiate over a particular rule and who make arguments in support
of certain drafting changes are far more
likely to retain a sense of the content
of this rule than those students who simply learn rules in the abstract. But in
the case
of successful simulation, students learn how to do international law
and by learning how to do international law, they “learn by
doing.”25 The learning process is converted
“from passive listening to action.”26 The
performative aspect is central. Students immerse themselves in the
process as actors (in both senses of that word) and, on leaving the academy,
they should find the world a more recognisable place as a result. Equally,
students learn skills rarely taught in international law
– oral skills,
negotiating skills and inter-personal skills.
Finally, there is the
affective skill – the skill that emphasises self-criticism and
experimental elements of a role-play. This requires a period after the
simulation in which students de-brief. Here, a combination of
feedback27 and “critical
review”28 is vital, if students are to reflect on
their responses during the simulation. In order to facilitate this the teachers
can develop
a series of questions. These could resemble the sorts of questions
asked by Richard Ingleby in his divorce law
simulation.29 However this is accomplished, it is
indispensable in securing one of the goals of a simulation: what Amy Zeigler
calls (in relation
to evaluating clinical legal education) “reflective
practice”.30 This reflective practice includes a
moral element in which the participants think about their ethical
responsibilities as actors
within a certain process. In the case of the
International Criminal Court simulation this is indispensable in ensuring that
students
think globally as well as acting as conduits for a specific State
interest.
So, the simulation can be a success on these three levels. However,
we believe it achieves other more specific goals. First, it permits
collaboration on meaningful tasks. One of the unfortunate by-products of our
highly individualised mode of assessment in the academy
is a tendency to
depreciate the benefits of cooperative endeavour and yet much of what we do on
leaving university is by necessity
done as part of a team (whether in government
or private practice). Simulations give students a rare opportunity to develop
these
very particular group skills.31
Second,
students can better see the value of their own ideas in a simulation. They are
given the time to develop positions and strategies
as opposed to responses to
teacher questions. The agenda is placed back in the hands of the students who
gain both autonomy and responsibility.
One of the remarkable aspects of the
various simulations we have held over the years is that they often produce ideas
or proposals
that are later reflected in subsequent inter-state negotiations.
The “Singapore Proposal”, which was suggested in order
to break the
impasse over the role of the Security Council in the Rome Statute, closely
resembled a similar idea developed by students
in one of our early simulations
in 1997. It is vitally important that students are made aware of these
achievements.
Third, the simulation can be an entertainment, a break from
the routines of lectures and tutorials.32 Certainly
students in the simulations we have run over the years have had a great deal of
fun dressing up in national costume, adopting
national characteristics (assumed
or actual) or engaging in heated confrontations. Apart from freeing students of
the constraints
of classroom dialogue, this aspect of the simulation can have
positive consequences. At one simulation on the UN Security Council,
the Russian
delegate removed his shoe and banged it on the table to underline a point he was
making. Many students later said they
felt this was an implausible act in the
context of such a meeting, a case of over-acting. Yet, the student playing the
Russian delegate
was merely adverting to the famous incident where Khrushchev
did exactly that in moment of anger. So simulations, even at their most
picaresque, can provide students with a useful insight into the peculiar
realities of inter-state negotiation.
Ultimately, as Richard Johnstone puts
it, simulations such as this one, “enable students to understand practical
aspects of
the operation of the law, to explore their own values and assumptions
in relation to the law, or to find out about the “internal
logic” of
a situation in which a lawyer might be placed”.33
This article has argued for the use of simulations to enhance the teaching
of international law. While, these exercises are time-consuming
and
unpredictable, they can and do work. They achieve a number of educational goals,
provide variety for teacher and student alike
and inspire an interest in
international law that, for many of the students involved, is ongoing.
* Foundation Australian Red Cross Professor of International Humanitarian Law and Associate Dean — Research, Faculty of Law, The University of Melbourne.
** Senior Lecturer in Law and Associate Dean —
Graduate Studies, Faculty of Law, Australian National University.
©
2000. [1999] LegEdRev 3; (1999) 10 Legal Educ Rev 61.
1 Clinical legal education is discussed in some detail in Kathy Mack, Clinical Learning for Conventional Classrooms (1992) 3 Legal Educ Rev 89. See also the introductory chapter in Rosalyn Higgins, Problems and Progress: International Law and How We Use it (Oxford: Clarendon Press, 1993) entitled ‘International Law is Not Rules’.
2 “Teaching in university law schools, with a few notable exceptions, is narrow, focusing primarily on exposition of legal doctrine and rather half-hearted in its application”. Richard Johnstone, Rethinking the Teaching of Law [1992] LegEdRev 2; (1992) 3 Legal Educ Rev 17, at 18.
3 Statute of the International Court of Justice, art. 38(1)(a).
4 P O’Malley, Accomplishing Law: Structure and Negotiation in the Legislative Process (1980) 7 Brit J of L and Soc’y 22, at 22-35; W Carson & C Henenberg, The Political Economy of Legislative Change: Making Sense of Victoria’s New Occupational Health and Safety Legislation (1988) 6 L in Context 1, at 1-19.
5 Johnstone, supra note 3. See also Richard Ingleby, Translation and the Divorce Lawyer: Simulating the Law and Society Interface (1989) 1 Legal Educ Rev 237. For other examples of simulation see Stacy Caplow, Autopsy of a Murder: Using Simulation to Teach First Year Criminal Law (1989) 19 N M L Rev 137; Philip G Schrag, The Serpent Strikes: Simulation in a Large First-Year Course (1989) 39 J of Legal Educ 555; Robert G Vaughn, Use of Simulations in a First-Year Civil Procedure Class (1995) 45 J of Legal Educ 480.
6 Ingelby, supra note 5, at 246.
7 James R Crawford, Teaching and Research in International Law in Australia (1984) 10 Australian Y B of Int’l L 176; also Ivan A Shearer, The Teaching of International law in Australian Law Schools [1983] AdelLawRw 10; (1983) 9 Adel L Rev 61.
8 Christine Chinkin & Hilary Astor, Dispute Resolution in Australia (Sydney: Butterworths, 1992). For an example of this method, see Paul J Spiegelman, Integrating Doctrine, Theory and Practice in the Law School Curriculum: The Logic of Jake’s Ladder in the Context of Amy’s Web (1988) 38 J of Legal Educ 243.
9 Johnstone, supra note 2, at 51.
10 Jay M Feinman, Simulations: An Introduction (1995) 45 J of Legal Educ 469.
11 Our experience in other institutions like the Unrepresented Nations and Peoples Organisation (Simpson) and the Conference on Disarmament, the Organisation for the Prohibition of Chemical Weapons and the Conference of States Parties to the Geneva Conventions (McCormack) have also afforded us a wider context with which to work.
12 Spiegelman, quoted in Mack, supra note 1, at 101.
13 See, for example, GR Williams, Using Simulation Exercises for Negotiation and Other Dispute Resolution Courses (1984) 34 J of Legal Educ 307; Marlene Le Brun and Richard Johnstone, The Quiet ()evolution: Improving Student Learning in Law (Sydney: Law Book Co Ltd 1994), at 304-307.
14 GA Res 44/23, U.N. GAOR, 44th sess , U.N. Doc A/RES/44/23 (1989). The General Assembly declared the period 1990-1999 the U.N. Decade of International Law to promote acceptance, respect and progressive development of international law as well as its teaching and dissemination.
15 Toonen v Australia UN Hum Rts Comm, UN Doc CCPR/C/50/D/ 488/1992 (1993).
16 US v Calley 46 C M R 1131 (1971), aff’d in 22 USCMA 534, 48 CMR 19 (1973).
17 We have never considered it necessary to provide the Draft Statute in its entirety because so much of the document is not directly relevant to the simulation exercise and copies of the entire document only increase the costs of the exercise and the time involved in preparing for it. However, there is certainly no reason in principle why students could not receive the complete document.
18 We have published joint commentary on the aspects of the Draft Statute also the subject of the simulation exercise and so have tended to use that material with some other authors. Our tendency has been to provide relevant extracts from 2-3 different articles. Again, there is no reason why more could not be provided but we have found that students do not need copious secondary sources to engage in the exercise.
19 Most statements are provided in English including by those States whose representatives speak one of the other official U.N. languages (Arabic, Chinese, French, Russian, Spanish). However, some statements are only provided in French and others only in Spanish. We have always found fluent French speakers and often found fluent Spanish speakers among the students participating in the exercise and have allocated them roles accordingly.
20 Convention on the Prevention and Punishment of the Crime of Genocide, adopted Dec 9, 1948, entered into force Jan 12, 1951, 78 UNTS 277.
21 Ingleby, supra note 5, at 248.
22 Feinman, supra note 10, at 469.
23 Feinman, id at 471.
24 Id.
25 Thomas A Robinson, Simulated Legal Education: A Template, (1992) 42 J of Legal Educ 296.
26 Mack, supra note 1, at 101.
27 See Johnstone, supra note 2, at 59.
28 Mack, supra note 1, at 92.
29 See Ingleby, supra note 5, at 239.
30 Amy L Ziegler, Developing a System of Evaluation in Clinical Legal Education, (1992) 42 J of Legal Educ 575, quoting Donald A Schon, Educating the Reflective Practitioner: Toward a New Design of Teaching and Learning in the Profession (San Francisco: Jossey-Bass, 1987). See also Feinman, supra note 10.
31 See Mack, supra note 1, at 92.
32 As Kathy Mack puts it, “students are less bored” id at 101.
33 Johnstone, supra note 2, at 51.
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