States’ Mouthpieces or Independent Practitioners? The Role of Counsel before the ICJ from the Perspective of the Legal Value of Their Oral Pleadings

Abstract

This article explores the role of counsel before the International Court of Justice, taking into account their tasks under the Statute of the Court and the legal value of their pleadings in international law. Pleadings of counsel constitute State practice for the formation of international customary law and treaty interpretation, and that they are attributable to the litigating State under the law on State responsibility. Accordingly, in principle, counsel present the views of the litigating State, which in practice approves in advance the pleadings. This consideration is relevant in discussing the role of counsel assisting Sates in politically sensitive cases, where there is no necessary correspondence between the views of the States and that of their counsel. Especially when less powerful States are parties to the relevant disputes, the availability of competent counsel in politically sensitive cases should not be discouraged since it advances the legitimacy of the international judicial function.

Keywords: Counsel; International Court of Justice; Pleadings