Wednesday, February 16, 2005

The Ethics of International Lawyering and Judging

Peggy’s post on ethical lawyering and the torture memos brings up some excellent points concerning the ethical responsibilities of all lawyers and government lawyers in particular. As she and David Luban point out, lawyers do not act in an ethical vacuum, but have certain responsibilities (most clearly exemplified in the ABA’s Model Rules) concerning how they act and the advice that they give. These rules are the province of domestic bar associations and domestic laws and, although we are applying them here in a case with international implications, they are rules concerning how the U.S. believes U.S. lawyers should act when doing their jobs. (For more on the ethical implications of the “torture memos”, I suggest a work-in-progress by my colleague Rob Vischer, a legal ethicist.)

A broader question though, is what, if any ethical guidelines should frame the work of lawyers who practice before international tribunals and the judges serving on these tribunals? Should each lawyer be governed by their home state’s ethical rules or should there be a common set of rules that would apply to lawyers litigating before such tribunals? Perhaps more importantly, what should be the ethical rules for international judges, especially those on the ICJ, the ICC, and other permanent international courts.

These questions have been garnering increasing attention by lawyers in recent years. In 1996 Professor Detlev Vagts of Harvard wrote “The International Legal Profession: A Need for More Governance?” (The American Journal of International Law, Vol. 90, No. 2. (Apr., 1996), pp. 250-261 available on JSTOR, registration required), probably the best starting point for wanyone interested in considering these issues. He notes that, whereas the ABA’s Model Rules were designed to end conflicts between the codes of conduct of the different different states of the U.S., the ABA stated that “[t]he choice of law provision is not intended to apply to transnational practice. Choice of law in this context should be the subject of agreements between jurisdictions or of appropriate international law.” The catch is determining if there even is any appropriate internaternational law. Vagts finds a variety of clauses or rules in domestic laws, rules of arbitral for a (such as the International Chamber of Commerce, the Statute of the International Criminal Court, and other sources. The result, though, is full of “problems and uncertainties”: a lack of uniformity, a lack of clarity, a lack of comprehensiveness, and lack of consistency makes this welter of rules amount to less than the sum of its parts.

Many of these rules are a combination of particular rules provided by an organization and informal professional norms. In international arbitral practice, for example, formal requirements based on the specific arbitral rules being used are supplemented by a relatively rich set of informal codes of conduct. Yves Dezalay and Bryant Garth have written a fascinating study of the how international arbitral practice fashions its“rules of the road” called Dealing in Virtue.

But this is not the same as the formal rules that we can turn to in domestic fora. Moreover, this begs the question with reagrds to the permanent international courts and to international judging.

While the ICJ has certain standards written out in its Statute, there is a need for serious consideration of a more comprehensive set of norms that would apply to international judges more generally. The Project on International Courts and Tribunals has a program devoted to assessing the questions of ethics, accountability, and independence of international judges (see also the Report of the First Meeting of the International Law Association’s Study Group on International Courts and Tribunals).

As would be no surprise to readers of this blog, I think that international tribunals can play a useful role in international relations. For a tribunal to be effective, though, it needs (among other things) to be perceived as fair. Comprehensive rules of judicial ethics that are enforced by member states would be a step in the right direction.

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