Edited by Moshe Hirsch and Andrew Lang
Chapter 10: The practice of litigation at the ICJ: the role of counsel in the development of international law
This chapter examines the practice of litigation at the International Court of Justice. By building on conceptual frames developed by Pierre Bourdieu, it focuses not on the practice of the ‘Court’ but on the practice of international legal counsel. In doing so it contrasts traditional accounts of how international law is made by states and then identified and interpreted by courts, with an account of a cooperative process of law-making exercised by international legal counsel, technical assistants, and diplomats in concert with judges and secretariats of international tribunals. It is argued that together they form a social space in which their competition is based on implicitly agreed rules (most of which are non-legal in nature), and that such a process is to the benefit of a number of actors involved, though states are not necessarily principal among these. By examining the physical and verbal cues of practitioners at the Court through a Bourdieusian lens, this chapter presents a pilot study for a reappraisal of the relationship between the practice of litigants and their influence on the content and practice of international law.
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