The (Un)Changing Face of ICJ Advocacy

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While extensive literature exists on the theory and practice of international law, legal scholarship lacks a robust body of literature that systematically examines the profession itself. This article examines the gender and professional composition of legal teams appearing before the International Court of Justice (henceforth “ICJ” or “Court”) in contentious proceedings between 2013 and 2022. Understanding who shapes international law is not a mere academic exercise; it is a crucial step toward enhancing the efficacy, inclusivity, and adaptability of the international legal system. The study that follows aims to contribute to the development of a body of work on the international legal profession and its (un)changing litigation practices.

The ‘ICJ mafia’, in Brownlie’s words, reflects the prevailing impression that litigation before the Court is dominated by a small elite. Indeed, in her recent speech on the 75th Anniversary of the ICJ, Judge Joan Donoghue reflected “[e]ach time that I gaze out at the delegations representing parties […], I am struck that their composition bears too much resemblance to the groups of persons who gathered in 1945 to draft the Charter of the United Nations and the Statute of the Court. Very few of the counsel are from developing countries and almost all, regardless of nationality, are men.” While scholars have questioned whether international law is truly international (Gaubatz, MacArthur), one might similarly ask: is international law gendered?

Collecting the Data

This study seeks to identify the progress made in the last decade when it comes to the representativeness of counsel appearing before the ICJ. At the outset, the adopted empirical frame of analysis may be contrasted with more conventional (auto)biographical approaches to this subject. Though empirics often sit uncomfortably with the legal profession, a numerical assessment allows for an objective and comprehensive review of international litigation practice. While the article, in its limited scope, confines itself to a discussion of gender parity – not nationality – the study also takes into account the professional role of counsel. In terms of methodology, the study focuses on (i) the ICJ as opposed to other international adjudicatory bodies; (ii) oral as opposed to written proceedings; (iii) legal counsel as opposed to political agents. It analyzes the representativeness of counsel appearing before the ICJ as opposed to the individual advocate. In any given case, appearing counsel – whether at the preliminary objections or merits stages – has been accounted for.

This paper is not interested in the individual advocates before the ICJ, but in the representativeness of the advocacy itself. It does not tell you, therefore, how many women appear before the Court, but rather how many appearances were by women (some of whom will have appeared more than once). It tracks the number of representations made in the name of academia, government, the bar, private practice, or in some other capacity, rather than the number of academics, government lawyers, sole practitioners, private practitioners, and others themselves. In this way, the study enables an assessment of how courtroom dynamics – the gender and professional background of the advocates – may shape international law.

Presenting the Data

In the 26 contentious cases before the ICJ from 2013 through 2022, 38 States appeared before the Court as applicants, respondents, as parties in proceedings brought by Special Agreement, or as intervenors. A number of States were repeat litigants before the Court during this period. From 2013 through 2022, 229 pleadings were submitted to the Court. The number of lawyers who appeared on behalf of each party in oral proceedings varied from case to case, probably depending on a number of factors such as the importance or political sensitivity of the dispute, its complexity, and the resources available to the party. The largest legal team that presented oral arguments consisted of 11 lawyers (Democratic Republic of the Congo v. Uganda) and the smallest teams had 1 advocate (India v. Pakistan respectively).

Of the 229 pleadings made to the Court between 2013 and 2022, only 38 – or 16.6% – were made by female advocates. Of those 38, 14 – 36.8% – were academics; 6 – 15.8% – were government lawyers; 10 – 26.3% – were barristers; 5 – 13.2% – worked at law firms; and 3 – 7.9% – worked in some other capacity. On the contrary, out of the 191 male submissions to the Court, an overwhelming majority of 114 – 59.7% – were academics; 10 – 5.2% – were government lawyers; 29 – 15.2% – were barristers; 31 – 16.2% – worked at law firms; and 8 – 4.2% – worked in some other capacity. It is noteworthy, therefore, that gender imbalances play out not only within but also across professional groups. Despite the overwhelming presence of academics at the Court, women make up only 10.9% of this demographic. By contrast, women make up a proportionately greater share of practicing barristers and government lawyers, 25.6% and 37.5% respectively. Thus, the professions in progressively gendered order are academics, private practitioners, barristers, ‘others’, and lastly government lawyers. The only legal team composed of more female than male advocates was the US delegation on preliminary objections in Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic Republic of Iran v. United States of America).

Figure 1 demonstrating the disparities in male/female appearances before the ICJ by professional role.

As a point of comparison with a 2014 study of lawyers appearing before the ICJ, women advocated before the Court a greater number of times between 2013-2022 than there were female advocates between 1999-2012. In the last decade, academics made up 55.9% of presentations to the Court, while 44.9% of advocates were academics in the prior decade. Between 2013-2022, government lawyers presented arguments 7% of the time, barristers accounted for 17%, law firms for 15.7%, and 4.8% worked in some other capacity. Between 1999-2012, 34.2% of advocates were government lawyers, 10.2% were sole practitioners, 8.3% were lawyers from law firms, and 2.4% were lawyers who worked in another capacity.

Figure 2 Illustrating gender disparities in advocacy practices before the ICJ over time.

Figure 3 Illustrating professional representation before the ICJ over time.

Analyzing the Data

One plausible explanation for the patterns that have been observed is the value of prior experience when advocating before the Court. Unlike domestic legal systems, where courts, bar associations, or councils often dictate the procedures for oral arguments, there is greater flexibility in legal proceedings before the ICJ (and particularly in oral hearings), partly to accommodate the meeting of different legal cultures and languages. The Court’s Rules and Practice Directions offer minimal guidance on the informal norms and customs that govern how experienced actors interact with the Bench (e.g. the practice of submitting answers to questions in writing only after the conclusion of oral hearings). Efforts to diversify involve brining new faces before the Court which, in the absence of formal rules governing oral proceedings, is easier said than done. The emphasis on experience at the ICJ leads to a strong preference for ‘repeat players’.

Efforts to promote diversity and inclusivity in international legal practice become particularly important in the ICJ’s role in the formation of customary international law. The perspective of the advocate affects how the issue before the Court is framed and perceived by the judges. Diversity of counsel thus enhances the credibility and legitimacy of the ICJ as an impartial and fair judicial institution, which in turn bolsters public trust in its decisions. Along the same line, the dominance of academics and government lawyers may mean that discussions in Court do not genuinely reflect the concerns of those directly affected by the issues at stake, as lawyers with strong ties to civil society or human rights advocacy are notably underrepresented. Diverse advocates bring unique perspectives and experiences to legal discourse, enriching the depth and breadth of arguments presented to the ICJ.

The findings of this study strongly support the widely held belief that oral proceedings at the ICJ are predominantly led by a specific group of individuals, mainly male academics. By all accounts, the international legal community, particularly lawyers presenting cases at the ICJ, maintains a level of exclusivity. This exclusivity, however, is not based on formal requirements like academic qualifications or bar exams. Instead, factors such as educational backgrounds, affiliation with professional networks, and previous experience in presenting cases before the Court shape the composition of legal teams. Significantly, they might also affect the decision-making processes within the Court itself.

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