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Holding Lawyers Representing States to a Higher Standard

Published on September 20, 2013        Author: 

Gibson photoCatherine H. Gibson is a Legal Adviser in the Iran-United States Claims Tribunal and a former Trial Attorney in the Civil Division of the U.S. Department of Justice.

Many thanks to EJIL:Talk! for the opportunity to blog. This post and the article on which it is based are written in my personal capacity, and all opinions are my own.

In my recent article in the Georgetown Journal of International Law I argue that attorneys representing States in international tribunals should act as ministers of justice, rather than as zealous advocates for their clients. My article focuses on U.S. government lawyers, but the underlying principles apply equally to all counsel appearing before international tribunals on behalf of States.

While domestic legal systems may generally prescribe specific, enforceable ethical duties for lawyers, no such formal standards exist under general international law or in the rules of most international tribunals. As discussed here, this gap may be partly filled by international courts’ rules of evidence and procedure and the reputational effects of repeat player relationships. This gap remains problematic generally, however, because lawyers of differing legal backgrounds may have divergent views of their duties and ethical obligations. In cases involving States, this gap is particularly troubling due to the high stakes for those involved and these cases’ potential importance in international law.

Fortunately, international law of lawyers’ conduct is developing. Read the rest of this entry…