Skip to main content Accessibility help
×
Home

Into the Void: A Counsel Perspective on the Need to Articulate Rules Concerning Disclosure Before the ICJ

  • Kate Parlett (a1) and Amy Sander (a2)

Extract

Individuals appearing before the ICJ on behalf of states are not subject under international law to any compulsory code of conduct to guide them in navigating issues of professional ethics. Article 42(2) of the ICJ Statute merely provides that parties “may have the assistance of counsel or advocates before the Court” and does not impose qualification requirements on those a state elects to appear on its behalf. In practice, legal teams appearing before the Court are comprised of individuals from different legal backgrounds who are either qualified legal practitioners or academics (referred to below as “counsel”). Qualified practitioners will likely be subject to professional codes of conduct applicable to them in their home jurisdiction, and those codes of conduct may bind them in relation to proceedings before the ICJ. But the professional obligations applying to practitioners from different jurisdictions can vary considerably. Some may consider that their domestic code of conduct does not (and/or should not) bind counsel before an international court. Those who are academics or are not admitted in any jurisdiction may not be subject to any conduct rules when acting as counsel. The absence of a common set of professional obligations means that the obligations bearing upon the conduct of particular counsel are unclear and certainly not uniform. This may have an impact on the presentation of a case before the Court, and in turn on the Court's understanding of the dispute. Ultimately, it could materially impact the outcome of a case.

  • View HTML
    • Send article to Kindle

      To send this article to your Kindle, first ensure no-reply@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about sending to your Kindle. Find out more about sending to your Kindle.

      Note you can select to send to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be sent to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

      Find out more about the Kindle Personal Document Service.

      Into the Void: A Counsel Perspective on the Need to Articulate Rules Concerning Disclosure Before the ICJ
      Available formats
      ×

      Send article to Dropbox

      To send this article to your Dropbox account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your <service> account. Find out more about sending content to Dropbox.

      Into the Void: A Counsel Perspective on the Need to Articulate Rules Concerning Disclosure Before the ICJ
      Available formats
      ×

      Send article to Google Drive

      To send this article to your Google Drive account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your <service> account. Find out more about sending content to Google Drive.

      Into the Void: A Counsel Perspective on the Need to Articulate Rules Concerning Disclosure Before the ICJ
      Available formats
      ×

Copyright

This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.

References

Hide All

1 Article 17 of the ICJ Statute does provide that “[n]o member of the Court may act as agent, counsel, or advocate in any case,” and Practice Direction VIII indicates that parties should refrain from selecting a person as counsel who has held certain positions at the Court.

2 Int'l Law Ass'n Study Group on the Practice and Procedure of International Courts and Tribunals, The Hague Principles on Ethical Standards of Counsel Appearing before International Courts and Tribunals (Sept. 27, 2010); see also Int'l Bar Ass'n, IBA Guidelines on Party Representation in International Arbitration (May 25, 2013); Council of the Bars and Law Societies of the European Union, Code of Conduct for Lawyers in the European Union (as amended May 19, 2006). See also Margie Jaime, Counsel Conduct in International Arbitration: An Ethical “No-Man's Land?”, 85 Arb. Int'l 211 (2019).

4 See, e.g., Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Jurisdiction and Admissibility, 1984 ICJ Rep. 392, para. 101 (Nov. 26, 1984).

5 Statute of the International Court of Justice art. 43(2) (emphasis added); see also ICJ, Rules of the Court art. 50(1) (1978).

6 In contrast, Annex VII of UNCLOS requires the parties to an Annex VII case to “facilitate the work of the arbitral tribunal and, in particular, in accordance with their law and using all means at their disposal, shall: (a) provide it with all relevant documents, facilities and information (b) enable it when necessary to call witnesses or experts and receive their evidence and to visit the localities to which the case relates.”

7 The Statute of the International Court of Justice: A Commentary 1247, paras. 44-45 (Andreas Zimmermann & Christian J. Tams eds., 2d ed. 2010).

8 See id., at 1248 (“Given that the obligation to cooperate does not imply a duty to disclose all relevant evidence, it is too vague to have any meaningful relevance in specific procedural situations, especially for the law of evidence.”). Cf. Anna Riddell & Brendan Plant, Evidence Before the International Court of Justice 49 (2009) (suggesting that the duty to cooperate may encompass a duty to produce all relevant evidence).

9 Pulp Mills on the River Uruguay (Arg. v. Uru.), 2010 ICJ Rep. 14, para. 163 (Apr. 20).

10 Cf. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), 2015 ICJ Rep. 3, para. 173 (Feb. 3 2015).

11 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro), 2007 ICJ Rep. 43, paras. 205-206 (Feb. 26). Cf. Chester Brown, A Common Law of International Adjudication 105 (2007).

12 For example, in the ELSI case, pursuant to a request from Italy, the President asked the United States to disclose a document, which was ultimately considered to be significant to the outcome of the case. See Elettronica Sicula S.P.A. (ELSI) (U.S. v. It.), 1989 ICJ Rep. 15, paras. 19 & 79 (July 20).

13 See Case concerning the Northern Cameroons (Cameroon v. UK), Preliminary Objections, 1963 ICJ Rep. 15, 2 (Dec. 2) (referring to the “duty of the Court to maintain its judicial character” and its “judicial integrity”); see also Oil Platforms (Iran v. U.S.), 2003 ICJ Rep. 161, 323-23, paras. 46-47, 52 (separate opinion of Judge Owada) (Nov. 6, 2003).

14 Oil Platforms, supra note 12, at 323-23, paras. 46-47, 52 (separate opinion of Judge Owada).

15 See James Gerard Devaney, Fact-Finding Before the International Court of Justice 182 (2016). The Court has referred to the limits to its powers under Article 49. See Case Concerning the Frontier Dispute (Burk. Faso/Mali), 1986 ICJ Rep. 554, 587, paras. 64-65 (Dec. 22). Further, the Court has exercised this power sparingly. Compare ELSI, supra note 11, with Bosnian Genocide, supra note 10. A similar power exists under Article 24(4) of the Permanent Ct. of Arb. Optional Rules for Arbitrating Disputes Between Two States (1992).

16 For criticisms of the Court for failing to make use of its powers regarding evidence, see Riddell & Plant, supra note 8, at 75. As to the invocation of Article 62, see Juan José Quintana, Litigation at the International Court of Justice: Practice and Procedure 416-24 (2015).

17 See, e.g., Corfu Channel Case (UK v. & Ir v. Alb.), 1949 ICJ Rep. 4, 32 (Apr. 9, 1949); ELSI, supra note 11, at paras. 19 & 79.

18 In at least one currently pending interstate arbitration, the parties have referred to the IBA Rules in the context of a request by one state for the production of documents by another.

19 Int'l Bar Ass'n, IBA Rules on the Taking of Evidence in International Arbitration arts. 3(3), 3(6), 3(7) & 9(5) (May 29, 2010).

20 Quintana, supra note 15, at 422.

21 See, e.g., Arman Savarian, Professional Ethics at the International Bar 90 (2013). It is generally acknowledged that the ICJ has an inherent power to regulate parties appearing before it and their representatives, at least in order to ensure respect for the principle of equality between the parties. See, e.g., Chester Brown, The Inherent Powers of International Courts and Tribunals, 66 Bri. Y.B. Int'l L. 195-244 (2006); M/V “Louisa” (Saint Vincent v. Spain), Case No. 18, Judgment, May 28, 2013, Separate Opinion of Judge Cot, paras. 28-29 (Int'l Trib. for the Law of the Sea). See also Rosalyn Higgins, Ethics and International Law, 23 Leiden J. Int'l L. 277, 288 (2010).

22 Int'l Law Ass'n Study Group on the Practice and Procedure of International Courts and Tribunals, The Hague Principles on Ethical Standards of Counsel Appearing before International Courts and Tribunals art. 6.1 (Sept. 27, 2010).

Metrics

Altmetric attention score

Full text views

Total number of HTML views: 0
Total number of PDF views: 0 *
Loading metrics...

Abstract views

Total abstract views: 0 *
Loading metrics...

* Views captured on Cambridge Core between <date>. This data will be updated every 24 hours.

Usage data cannot currently be displayed