Gerber, P; Castan, M --- "Practice meets theory: using moots as a tool to teach human rights law" [2013] LegEdDig 28; (2013) 21(1) Legal Education Digest 43

• Practice meets theory: using moots as a tool to teach human rights law

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Practice meets theory: using moots as a tool to teach human rights law

P Gerber and M Castan

Journal of Legal Education, Vol. 62, No. 2, 2012-2013, pp 298-310

The international community, through the United Nations, strongly advocates that states must provide their people with human rights education (HRE). More recently, the international push for HRE has escalated with the General Assembly proclaiming the Decade for Human Rights Education (1995-2004) and the subsequent World Programme for Human Rights Education (2005- ongoing), and adopting the Declaration on Human Rights Education and Training.

These international commitments aside, empirical research has found that many educators struggle with how to educate students about human rights.

This article explores how moots can be an effective tool to do that, and analyses three successful human rights mooting competitions from around the world for the purpose of highlighting best practices.

There is already considerable scholarly exploration of the pedagogical value of mooting to the law school curriculum. However moots are often perceived in terms of a being solely a pedagogical model for teaching students the skills of courtroom advocacy.

The mooting literature identifies a broad variety of legal and practical skills that are enhanced by students’ involvement in moots, including advocacy, communication skills, critical thinking skills, self-confidence and teamwork.

However, what is lacking in the scholarship is an in-depth analysis of moots as a tool for deep doctrinal learning. Typically, the literature concentrates on the process of mooting, but neglects the content. An exception to this is Jack Graves and Stephanie Vaughan, who analysed the well-known annual international commercial arbitration moot competition known as Vis Moot.

The purpose of HRE is not that students learn about human rights, but rather that students know, understand and embrace the fundamental principles that are at the core of human rights. We argue that moots are an invaluable tool to help achieve this, that is, moots can play a pivotal role in assisting students to learn the substantive principles of human rights law, as well as their practical application. Thus in a human rights moot, not only do students develop clinical skills of advocacy, but they also significantly increase their knowledge of human rights law through undertaking the research and preparation necessary to cogently argue a human rights position in a moot court.

What makes mooting such a useful learning device when it comes to legal doctrine or subject matter, is that students must have comprehensive knowledge and a deep understanding of the issues and applicable law, so that they can respond to questions. Students participating in moots are generally terrified of not being able to answer a question put to them by the bench, and therefore tend to make sure that they have such an in-depth knowledge of the subject matter that they can answer any question that may be thrown at them. Thus, on one level, students are engaging with the material because of an extrinsic motivation: to avoid failure. But we also see a more positive perspective, as preparing and arguing a moot is fundamentally a learning experience that is the antithesis of the superficial learning that time-poor students often engage in. Mooting is one of the best forms of deep and experiential learning available to law students. Because the decision to moot is often a voluntary one, students who participate are embarking on a learning task that they are inherently motivated to complete, and hopefully enjoy. Thus, moots present a valuable and engaging learning opportunity, which is fundamentally different from the regular law school education.

One of the challenging aspects of teaching human rights law is that there is a dearth of cases where students can see a practical application of human rights in the legal system. With human rights, students can see the legal principles set out in international instruments, such as the Universal Declaration of Human Rights and numerous human rights treaties, but there is not the same opportunity to analyse the practical application of those principles by the courts. Human rights mooting competitions seek to fill this void. Mooting competitions that focus specifically on human rights provide students with an opportunity to not just learn about the concept of human rights, but to actually play a part in the application of those principles to hypothetical cases. This moves human rights out of the realm of mere abstract concepts, and into the world of real and practical application of the law, which provides students with invaluable knowledge and skills.

Notwithstanding the demonstrated role that moots can play in promoting deep learning about human rights law, there are very few examples of human rights mooting competitions: (1) African Human Rights Moot and World Human Rights Moot, both organised by the University of Pretoria in South Africa; (2) Inter-American Human Rights Moot Court Competition organised by the Washington College of Law at the American University; and (3) Castan Centre Human Rights Moot organised by the Monash University Law School in Australia.

African Human Rights Moot: although the moot is organized by the University of Pretoria in South Africa, the competition is held in a different country each year. Participating students also attend a conference or course on international human rights law and go on a one-day excursion to a place of national interest to the host country. Thus, students have the opportunity to experience human rights issues and perspectives in a variety of ways over and above the doctrinal and practical knowledge acquired through their participation in the formal moot.

Students participate in two preliminary rounds where they argue each side of the same case. The best teams from each language group advance to the final round where, by draw of lots, they are merged to form two new combined teams with English, French and Portuguese students on each side.

In recent years, the hypothetical problems used by the African Human Rights Moot have related to such diverse issues as HIV discrimination in employment; right to medical care; right to a fair trial; harmful cultural practices; conditions of work; freedom of expression; independence of the judiciary; right to development and self-determination; child soldiers; and property rights. Thus, there has been great diversity in the human rights issues addressed, including coverage of both civil and political rights and economic, social and cultural rights.

The African Human Rights Moot requires students to engage in deep learning of international and regional human rights laws.

The African mooting competition is the largest human rights educational initiative in Africa. Its aims include ‘ensuring that international human rights, and in particular, the African regional system, are made part of the curriculum of law faculties in Africa’, and creating a network of young African human rights lawyers. Thus, the focus of the moot competition is very much about furthering human rights knowledge and practices, rather than simply developing advocacy and courtroom skills.

In part, because of its role in creating and maintaining the African Human Rights Moot, in 2006, the Centre for Human Rights at the University of Pretoria was awarded the prestigious UNESCO Prize for Human Rights Education. The award recognised the invaluable role that the mooting competition played in deepening students’ knowledge and understanding of the African Charter on Human and Peoples’ Rights. Indeed, it has been noted that the African moot:

has revolutionised human rights teaching on the African continent. Its impact institutionalised as law faculties across the continent increasingly started developing human rights curricula, including, in particular, elements of the African regional human rights system. In this way, not only moot participants but generations of future students indirectly benefit from the moot.

There can be no doubt about the significance and long term impact of this moot in terms of HRE across Africa.

The Inter-American Human Rights Moot Court Competition is organized by the Washington College of Law and has been running for over 15 years. Law students argue a hypothetical case before the Inter-American Court of Human Rights (IACHR). Teams consist of two students and a coach, and each university may enter only one team.

Whether coaches should play a part in a human rights mooting competition depends on a number of factors, including the role they are permitted to play and the availability of academic staff to take on such a role. While coaches are common in moots which have as their aim the development of advocacy skills, it is suggested, that the main purpose of the moot is actually for students to actively increase their knowledge of human rights law through the research they do into the substance and application of such laws.

The moot is conducted in two stages. The first is submission of a written memorandum not exceeding 30 pages. This is a sizeable piece of work, and suggests that this moot places a greater emphasis on the written arguments than the oral application of human rights law to the problem at hand. The memorandum counts for one third of the overall score, with the other two-thirds based on the oral argument. Both elements involve deep engagement in the various aspects of human rights law, and thus constitute HRE.

Oral argument is the second stage of this moot competition, which, common to many moots, is conducted in three stages: a preliminary round, where each team argues twice; a semi-final round; and a final round. This is sufficient time to allow a team to engage deeply with the human rights issues. In the authors’ experience, each team member needs at least 15-20 minutes for oral presentation to have sufficient time to delve deeply into the issues and allow time for questions from the bench.

The semi-final round of competition consists of 16 of the highest ranked teams – eight representing the victim, and eight representing the state. The final round is a championship match between the highest-ranking team representing the victim and the highest-ranking team representing the state.

The Inter-American Human Rights Moot Court provides a useful model for a mooting competition aimed at facilitating increased learning about human rights. However, it could be improved by making it accessible to more students, through the abolition or reduction of the registration fees and by reducing the size of the written submissions, which, at 30 pages, seems excessive.

The Castan Centre Human Rights Moot, which started in 2007, is the newest human rights moot.

Initially, universities each fielded two teams of three students. However, in 2009, due to student demand, universities were permitted to enter three teams of three students each. The students take on the role of senior counsel, junior counsel and instructing lawyer. No coach is allowed. This model maximises opportunities for student involvement by having larger teams. Students are not confined to the same role throughout the competition, and often swap roles in different rounds.

Each team submits an outline of its arguments, highlighting the issues the team is focusing on, and a list of all cases, treaties, and other authorities/ jurisprudence on which they will rely. The written submission is generally prepared by the student who acts as the instructing lawyer. It gives that student an opportunity to develop their skills in applying human rights arguments in the written form, while their teammates develop skills at verbally articulating human rights arguments.

Each team competes in two preliminary rounds. In the first round they argue for one side, and in the second round they swap and have to take the opposing position. Requiring teams to argue that there has been a breach of human rights, as well as that there has been no violation of human rights, gives them a more nuanced understanding of human rights law.

The four top teams progress through to the semi-final round, which is conducted a few days after the preliminary round, and is based on the same human rights problem. The use of a single problem throughout the competition maximises the opportunity for students to engage in deep learning.

Because the Castan Centre Human Rights Moot sits outside the law curriculum, students do not receive any academic credit for their participation. In order to ensure that there is an incentive to take on all the work involved in being part of a human rights moot, over and above their regular study commitments, monetary prizes are awarded to the winners and runners up. Of the three moots analysed in this article, The Castan Centre Moot is the only one that provides prize money. While the opportunity to win prize money has proved a good incentive for students wanting to enter and perform to the highest standard, we wonder how this affects the intrinsic motivation and aim of deep learning for the students.

Students who have participated in the Castan Centre Human Rights Moot have benefited significantly from the intensive hands-on learning involved in preparing for, and participating in, this competition.

In 2010, the organisers of the Castan Centre Human Rights Moot surveyed participants on their perception of the moot and how it could be improved. The results reveal that the moot is meeting its aim of increasing students’ knowledge of state human rights legislation, with 90 per cent of students reporting that they felt more comfortable incorporating human rights into legal arguments than before they participated in the moot. Thus, the moot is providing students with practical experience in using human rights arguments which is likely to make them more comfortable and knowledgeable about using such arguments once they enter practice. Although this moot competition is barely five years old, this feedback demonstrates that it is having its desired effect of providing students with deeper knowledge, skills and confidence regarding human rights law and its application.

The African, American and Australian human rights mooting competitions exemplify the way in which moots can be effectively used to provide human rights education through memorable and practical experiential learning. They demonstrate that mooting can be about much more than just learning courtroom skills and can, in fact, provide a useful tool for students to engage deeply with the substantive area of law on which the moot questions are based.

A human rights moot promotes experiential learning, giving law students the chance to translate theory into practice and apply human rights laws to real life problems. The process of reasoning issues through, and answering questions, results in students truly engaging with, and experiencing human rights laws and jurisprudence, as opposed to just knowing about the abstract concepts. The deep engagement with legal doctrine can play an important role in promoting increased knowledge of, engagement with and respect for human rights, as well as form a vital part of legal education and the preparation for legal practice.