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The modern professional world of international adjudication bears little trace of the ‘invisible college’ theorized by Oscar Schachter 50 years go. Instead, it has become a social field marked by a fierce competition among actors possessing unequal skills and influence. Moving from these premises, this article unravels the socio-professional dynamics of the community of legal experts – judges, arbitrators, government agents, private counsel, court bureaucrats, specialized academics, etc. – dealing with the judicial settlement of international disputes on a daily basis. On the one hand, the community has developed a specific set of social structures, practices, and dispositions that distinguish it from the rest of the international legal profession and insulate its activities from outside interference. On the other, it is the site of an endless struggle among its participants, who deploy various forms of capital to consolidate their positions relative to one another. Having outlined the twofold structure of the community – externally autonomous and internally conflictive – the article reflects on how co-operation and competition affect the everyday unfolding of international judicial proceedings and the production of legal outcomes at the international level.
In “Who Guards the ‘Guardians of the System’? The Role of the Secretariat in WTO Dispute Settlement,” Joost Pauwelyn and Krzysztof Pelc describe, in rich detail, the pervasive involvement of the World Trade Organization (WTO) Secretariat in the resolution of trade disputes.1 The authors conclude, rather emphatically, that the Secretariat “exerts more influence over dispute settlement proceedings than the staff of any comparable . . . tribunal.”2 In my view, this conclusion is somewhat misleading, as it portrays the WTO as “exceptional” or “sui generis”3 among international courts. In fact, the invisible army of legal bureaucrats (clerks, registry and secretariat lawyers, arbitral assistants, etc.) plays a “critically important”4 part across the whole field of international adjudication. What is missing is a comparative analysis of the power those bureaucrats wield in different judicial regimes. In this Essay, I outline a basic framework for the comparison, focusing on two main factors: first, the organizational and contractual arrangements that govern the relationship of international judges and bureaucrats; second, the relative distribution of expertise and capital between the two.
This brief epilogue closes the circle. If the story opened with a solemn view of the Great Hall of Justice, it ends in the quiet of a living room on the other side of The Hague. Sophie and Norma get a final chance to chat about the events of the past three years. What was Sophie thinking when she joined the international judiciary? Where is the vision that was promised to her when she graduated from university? Norma does her best to cheer up her girlfriend. A 19th century novel, an orchestral piece by Ennio Morricone, and a glass of red wine do the trick.
The story opens in the solemn setting of the Great Hall of Justice, where the President of the ICJ is about to deliver the Court’s judgment on a long and difficult dispute. Among the attendees is Sophie Richter, a clerk to ICJ judge Jürgen Lehmann. Sophie ponders about the many steps it took to get to this day: all the actors, visible and invisible, who contributed to the judicial process; all the interactions that occurred at every turn; and all the possible realities that were discarded along the way. The issuance of today’s judgment is, in fact, the end of a long and strenuous journey, which will be chronicled through successive flashbacks in the following chapters. Having set the stage for the narrative, the chapter introduces the central themes of the book. First, it reviews existing literature on international adjudication, including formalist treatises, critical accounts, and legitimacy-oriented analyses. Second, it invites the reader to consider the importance of everyday socio-professional practices in the definition of international judicial outcomes.
This chapter describes how judicial bureaucrats characterize the state conduct or measure that gave rise to the proceedings. That characterization is a value-laden exercise whereby discrete aspects of reality are captured into the gravitational fields of the various courts and tribunals. In its normal course, state action is irreducibly pluralistic and does not lend itself to univocal labels: no domestic measure is ever only about ‘borders’, ‘investment’, or ‘human rights’. Yet, labels are necessary to attract the measure to the jurisdiction of this or that institution. The choice of the terms by which one describes state conduct determines the normative prism through which one looks at it, and reflects a struggle for appropriation among competing fora.
The story finally gets to the interpretation and application of legal norms to the facts of the case. This chapter deals with the first interpretive step, called law-ascertainment, where the interpreter identifies the rules that are relevant to the case at hand. Donning the hat of an explorer, the interpreter maps the body of norms precedents in concentric circles – starting with the sources closest to the centre of gravity of their judicial regime and gradually venturing into more peripheral territory. The results of these practices explains the degree of cohesion or fragmentation in international law. As the legal system grows more complex, interpreters no longer have time and resources to master it all, and prove increasingly partial and selective in their legal readings. The emergence of self-contained regimes is largely due to epistemic constraints which, in turn, reflect the social structures of the international judicial community.
This chapter starts to analyse the institutional frameworks of different international courts and tribunals in comparative perspective. More importantly, it introduces the invisible army of legal bureaucrats (clerks, registry and secretariat officials, and arbitral secretaries) who assist international adjudicators in their daily duties. The story focuses on their backgrounds, their modes of recruitment and promotion, their relationship with the judges and arbitrators they are called to serve, and the ambiguities inherent in that relationship. From here onwards, the role of bureaucrats in the judicial process will come into sharper relief. Their duties typically include: summarizing the parties’ arguments for the benefit of the adjudicators, conducting legal and factual research on the disputed issues, circulating internal memoranda that suggest options on how to solve the case, assisting in the preparation of oral questions for hearings, attending deliberations, and drafting the final judgments or awards.
Although judicial bureaucracies are the backbone of international courts and tribunals, their presence remains largely unacknowledged in official discourse and scholarly analysis. This chapter takes collective silence as an object of interest and explores its socio-political dimensions. The role of judicial bureaucrats is an open secret. Courts, government representatives, counsel, and academics are all aware of it, and yet conspire to keep it invisible to the public. The chapter reflects on the reasons behind the conspiracy of silence. Could it be due to the confidential nature of judicial proceedings? To the need to preserve the legitimacy of judicial institutions in the eyes of their audiences? Or, perhaps, to the instinctive desire of international lawyers to maintain an aura of mystery and sanctity around their profession?
The preface describes the research methodology and the writing process that led to this book. It begins by explaining how the author collected information from the relevant sources, verified its completeness and accuracy, and analysed it under a unified framework. It then turns to the issue of storytelling style and to the author’s decision to present his findings in the form of a fictionalized account. In so doing, the preface discusses the problem of verifiability of classified information, the issue of trust between the narrator and the audience, and the promises and pitfalls of literary writing when it comes to informing, reporting, or commenting on real life.
The story moves into the inner quarters of international courts and tribunals, where judicial bureaucrats are studying the files and starting to prepare for the cases. This chapter tackles the seemingly innocuous, but in fact crucial task of summarizing the parties’ submissions. Far from purely mechanical, the drafting of summaries entails a series of fundamental choices about the nature and contours of the dispute. By distilling the irreducible complexity of life into a digestible set of claims and arguments, bureaucrats initiate a process of lyophilization that will eventually lead to a clean, apodictic, and self-contained ruling. At every step of the judicial process, certain lines of reasoning come to the fore while others are relegated to the margin of the analysis. Often, the final judgment bears only a faint resemblance to the setting in which the dispute initially arose.
This chapter takes the reader to the innermost chamber of the court: the deliberation room. There, the story untangles the maze of interactions that occur among the adjudicators as they finally decide the merits of the case. What commentators usually describe as the moment of truth is, in fact, a delicate dance of assertions and contestations, argument and counterargument, lunges and sidesteps. Amid the confrontation, judicial bureaucrats work staunchly and discreetly to guide the flow of the debate, broker compromises, and overcome stumbling blocks. The decisions and instructions that eventually emerge from deliberations may well be the truth – but a carefully constructed one. The deliberative practices of the various courts and tribunals, all described in this chapter, are more than simple logistical matters or mere conveyors of content. Rather, they have a crucial impact on the way adjudicators arrive at their decisions and, therefore, on the substantive outcomes of each dispute.
This chapter fast-forwards to the days of the hearing. It offers an overview of the oral pleadings, the exchanges between the parties, and the interactions between the litigants and the bench. The analysis seeks to dispel the common misunderstanding that a hearing entails a free-flowing and spontaneous discussion. In fact, it often looks like a tightly choreographed play where agents, counsel, adjudicators, and court officials each follow their script. All participants embrace their role as actors and gleefully contribute to this staged performance. The theatrics of the hearing serve a twofold purpose. On the one hand, they enable the professionals involved to come together, tacitly acknowledge one another, and enhance their relative prestige. On the other hand, they help convey the symbolic force of international adjudication as the center-stage of peaceful governance.
This chapter turns to the judicial bureaucrats’ review of the facts and evidence on the record. As all soon discover, it is impossible to reconstruct the historical or objective truth behind a case, but only to come up with a persuasive factual narrative that obscures as much as it reveals. What may appear a structured and logical task proves more akin to bricolage. As they parse through the record, bureaucrats are bound to select the facts they deem most salient, ascribe varying weight to the scraps of information they come across, and use whatever is at hand to stitch up an assessment able to withstand scrutiny. Things get even trickier – and more uncertain – where technical or scientific evidence is involved. Some courts are better equipped to engage in extensive factual review than others. These differences notwithstanding, most international judges tend to have little patience for complex evidentiary issues, which they happily delegate to their legal assistants.