Abstract
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.
Highlights
Disclosure of DocumentsIn preparing a claim before the Court, there will invariably be a process of collating and reviewing documents in the client’s possession
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.[1]
Summary
In preparing a claim before the Court, there will invariably be a process of collating and reviewing documents in the client’s possession. The focus here is primarily on documents helpful to the client’s case This is a function of the relevant rules: the burden of proof is on the party alleging a position,[4] and the Court’s Statute provides that the written proceedings include “all papers and documents in support.”[5]. The short answer seems to be that no one really knows, yet cases muddle on This lack of a shared understanding within a legal team risks confusion or disagreement amongst counsel, and between legal teams appearing before the Court risks a scenario where each side of the aisle may be playing by different rules on an issue as basic as the disclosure of documents. While the Court has stated that a respondent “should” cooperate in the provision of “such evidence as may be in its possession that could assist the Court in resolving the dispute,”[9] it appears to have been reticent in framing it as a clear legal obligation,[10] and certainly has not framed it as an unconditional one.[11]
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