Ethical Dilemmas in Inter-State Disputes
21 Pages Posted: 25 Oct 2017
Date Written: 2016
Despite the growth of international adjudication in the past few decades, ethical standards for counsel appearing before public international courts and tribunals remain underdeveloped. Today, counsel has scant guidance—as a matter of international norms or law—as to what behavior is appropriate and professional. Consequently, litigants’ behavior is largely governed by ethical rules established and enforced by domestic regulatory authorities. This Essay challenges this ethical status quo and urges a firmer set of internationally transcendent ethical principles to apply in public international litigation.
In particular, this Essay considers the lack of ethical guidance for counsel litigating inter-state disputes before the International Court of Justice (ICJ). It argues that, as a baseline, concrete duties of diligence and disclosure should be developed as the foundation of an ICJ-specific ethical code of conduct. The Essay questions, however, whether the ICJ would be the ideal enforcer of such code, and points to several reasons why assuming such a role may undermine some of the Court’s broader purposes and goals. It suggests that national courts or political systems could be more effective in playing an enforcement role if domestic commitment to do so could be firmly secured.
Ultimately, the Essay aims to spark conversation between scholars and practitioners of international law about the need to set ethical boundaries for litigants appearing before the International Court. It also seeks to encourage further steps toward drafting diligence and disclosure standards and identifying a credible and authoritative mechanism to enforce them.
Keywords: professional ethics, international law
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