Common Ethical Standards for Counsel before International Courts and Tribunals

The problem of divergent ethical standards for counsel before international courts is of growing interest and concern to judges and practitioners. With international advocacy highly unregulated, recent years have seen a rise in challenges to the participation of counsel and of threats to the integrity of the judicial process. In this normative vacuum, an uneven playing field is created between those counsel who are members of national bars are bound by ethics that do not apply to their academic or diplomatic counterparts. Moreover, conflicting national standards binding upon practitioners create procedural problems within a single jurisdiction. In response, practitioners have begun to examine the feasibility of articulating common standards through study groups in professional organisations such as the International Law Association, International Bar Association and Council of Bars and Law Societies of Europe. The ILA Hague Principles on Ethical Standards for Counsel Appearing before International Courts and Tribunals 2010 are the first attempt to do so. Despite its increasing importance, the subject has yet to be comprehensively debated in international law scholarship. This paper, deriving from the author’s forthcoming monograph entitled ‘Professional Ethics at the International Bar’ to be published in late 2013 by Oxford University Press in its ‘International Courts and Tribunals Series’. It identifies the core issues in the ‘professionalisation’ of advocacy before international courts as the regulatory competence of international courts and the articulation of common standards in light of national differences of legal culture. The paper argues that professionalisation is both feasible and desirable to protect procedural integrity and thereby promote the external legitimacy of international adjudication amongst the public. This can be accomplished through a drafting process sensitive to national differences and prioritising standards that pragmatically solve recurrent practical problems. The paper ties into the overall theme of ‘International Law as a Profession’. In particular, it directly links to the sub-theme of ‘individual accountability of judges, counsel and legal advisers’. The central argument of the paper that the articulation of common ethical standards for counsel appearing before international courts and tribunals is desirable and feasible in order to protect and promote the integrity and fairness of the international judicial process would contribute significantly to the overall reflective themes of the conference, which considers the roles and functions of the international legal profession(s)