Messenger: The Practice of Litigation at the ICJ: The Role of Counsel in the Development of International Law

Gregory Messenger (Univ. of Liverpool - Law) has posted The Practice of Litigation at the ICJ: The Role of Counsel in the Development of International Law (in Research Handbook on the Sociology of International Law, Moshe Hirsch & Andrew Lang eds., forthcoming). Here's the abstract:

International law is the law of States. They are the principal actors in international law, and it is primarily upon their consent that the international legal system is built. This is the customary starting point, upon which additional complexities are added: the role of international organizations (‘IOs’), multinational corporations or other non-state actors, and the importance of transnational networks of regulators.

This contribution seeks to identify the role of another set of actors involved in international law-making – international legal counsel – those individuals involved in providing legal advice and litigating at international tribunals. In particular, the focus will be on the most traditional of international law’s judicial institutions: the International Court of Justice (‘ICJ’). The argument is the following: beyond the orthodox accounts of law-making as dominated by States or IOs and guided by international tribunals such as the ICJ, there exists a cooperative process of law-making exercised by international legal counsel, technical assistants, and diplomats in concert with judges and secretariats of international tribunals. Together, they form a social space in which their competition is based on (implicitly) agreed rules, most of which are non-legal in nature. Such a process is to the benefit of a number of actors involved, though States are not necessarily principal among these.