Book Review - The Everyday Makers of International Law: From Great Halls to Back Rooms

Dr.Prema E & Ragul OV

22 Aug 2023 4:56 AM GMT

  • Book Review - The Everyday Makers of International Law: From Great Halls to Back Rooms

    The book “The Everyday Makers of International Law: From Great Halls to Back Rooms” unveils the Inner Workings of International Courts, and the authors embark on a fascinating journey to expose the intricacies of the international judicial community. This thought-provoking book delves into the practices, interactions, and confrontations among legal professionals that ultimately...

    The book “The Everyday Makers of International Law: From Great Halls to Back Rooms” unveils the Inner Workings of International Courts, and the authors embark on a fascinating journey to expose the intricacies of the international judicial community. This thought-provoking book delves into the practices, interactions, and confrontations among legal professionals that ultimately shape judicial outcomes, urging readers to abandon traditional formalism and embrace a more nuanced understanding of international adjudication.

    The central theme of the book revolves around the significance of everyday practices and social dynamics within the international judicial community. The authors argue that these subtle elements wield considerable influence in determining the course of justice far beyond the mere application of formal legal frameworks. This groundbreaking perspective challenges conventional wisdom and calls for a deeper appreciation of the complex dynamics at play.

    One of the book's strengths lies in its comprehensive exploration of various courts and tribunals, including the ICJ, ECtHR, IACtHR, WTO, and investor-state arbitral tribunals. By analyzing how these institutions handle disputes and examining their positions within the international judicial community, the authors skillfully elucidate the epistemic categories, dynamics, and operational boundaries that shape their decisions.

    Intriguingly, the authors highlight the lack of a single dominant entity within the international judicial community. Instead, each court occupies a distinct position, contributing to a diverse range of influences on judicial outcomes. This perspective offers readers a multifaceted understanding of the complexities inherent in the global judicial landscape.

    The concept of "international judicial practices" takes center stage, illustrating how litigation before international courts and tribunals has evolved from a niche field into a specialized and profitable endeavor. This evolution has attracted multinational law firms to establish dedicated offices worldwide, indicating the growing importance of international dispute resolution.

    In the ICJ, the emergence of a specialized bar of counsel raises intriguing questions about the concentration of power within this select group of individuals. The authors reveal that a few lawyers handle the majority of written submissions and oral pleadings before the court, accruing significant professional capital. This phenomenon, combined with high entry barriers and limited docket, perpetuates a social hierarchy within the bar, potentially influencing the outcome of cases.

    One of the most thought-provoking paradoxes addressed in the book is the apparent disparity between the increasing geographical diversity of actors seeking resolution in international courts and the decreasing diversity of litigators representing them. Developing countries often outsource their legal representation to a handful of white Western men from elite law firms, which may hinder the introduction of new perspectives and innovative approaches in international litigation.

    The book begins by emphasizing how specialization in international law can lead to epistemic biases and tunnel visions. Through a compelling case study involving a dispute between the European Union (EU) and Indonesia over palm oil regulations, the book explores how different legal experts' biases can impact the handling and outcomes of complex international disputes. Trade experts may, for instance, overlook human rights principles in trade disputes, while investment lawyers may ignore environmental concerns in their cases. This lack of a broader perspective can limit the ability to address multifaceted legal issues that involve multiple aspects of international law.

    The case of the EU's new regulation on palm oil provides a captivating backdrop to explore the complexities of international trade disputes. Indonesia, a developing country unable to meet the Roundtable on Sustainable Palm Oil (RSPO) criteria, files a panel request with the World Trade Organization (WTO) to challenge the EU's measures, claiming discrimination against its palm oil exports. Jasper Schoonraad, tasked with analyzing Indonesia's panel request, faces the challenge of crafting a compelling legal strategy to defend the EU's position before the WTO panel.

    The book deftly navigates through the legal aspects of the dispute, focusing on the General Agreement on Tariffs and Trade (GATT) and the Agreement on Technical Barriers to Trade (TBT Agreement). The central question revolves around whether the EU's regulation complies with the national treatment principle and adheres to the technical regulations outlined in the TBT Agreement.

    One of the book's key contributions is its exploration of self-contained regimes in international law. Here, the author elucidates how different courts and tribunals appraise the same problem through their own distinct lenses.

    The book also delves into the interpretation of the term "likeness" under Article III:4 of the GATT. Two approaches are presented—the formalistic approach, adhering strictly to the rules of interpretation outlined in the Vienna Convention on the Law of Treaties, and the critical approach, acknowledging interpreters' values and assumptions. The complexities of interpreting "likeness" are further explored through alternative interpretations that consider environmental or labor factors and public policy concerns in investment disputes.

    This thought-provoking book delves into how open hearings and closed-door proceedings influence judges' behavior, the impact of audience reactions on courtroom dynamics, and the significant contributions of interpreters, court reporters, and civil society organizations in the theatricalization of hearings.

    By shedding light on the pressure judges face to adhere to a protocol in open hearings and acknowledging the potential for more candid discussions in closed-door proceedings, the author presents a nuanced perspective on the complexities of the courtroom environment.

    The book's unique insight into behind-the-scenes interactions among judges adds a layer of depth to its exploration of decision-making in complex international legal disputes. The "exchange of views" sessions, where judges discuss cases with other Appellate Body members not part of the Division, emphasize the importance of collegiality in reaching well-considered decisions.

    The book takes readers on a captivating journey through the hitherto hidden world of judicial assistants in international adjudication. By skillfully defining the analogy of weaving ceremonial mats to describe the complexity of drafting judgments, this book sheds light on the meticulous attention to detail required in the decision-making process. The author masterfully navigates through the journey of two characters, Matt and Sophie, judicial assistants working in the World Trade Organization (WTO) and the International Court of Justice (ICJ), respectively, as they grapple with the challenges of summarizing parties' arguments in complex international disputes. Matt and Sophie's experiences in dealing with the EU-Palm Oil case in the WTO and the Sovereignty over the Territory of Sabah, North Borneo case in the ICJ highlight the challenges they face.

    The meticulous process of drafting judgments, with iterative revisions leading to reduced editing as decisions near finalization, offers readers a fascinating glimpse into the inner workings of these courts and tribunals. The portrayal of hectic drafting phases, private meetings among judges, and coordination among bureaucrats to ensure consistency and resolve disagreements paints a vivid picture of the intense efforts invested in reaching well-considered decisions.

    The book also delves into the intriguing practice of maintaining strict confidentiality surrounding the roles and functions of judicial assistants. As described by the author, this "principle of three wise monkeys" raises questions about the implications of keeping judicial bureaucrats invisible from public view. The fear that revealing the extent of involvement of both insiders (judges and judicial bureaucrats) and outsiders (governments, private counsel, academics), may raise doubts about the legitimacy of international adjudication. Furthermore, it adds an air of mystery about its workings.

    The book adeptly explores the diverse procedures followed by different international courts in preparing memoranda. One notable example is the WTO's issues paper, a comprehensive document that aids panelists and Appellate Body members in familiarizing themselves with the intricacies of a case before hearings. This highlights the importance of well-structured and informative memoranda in enabling adjudicators to grasp the nuances of disputes and make well-informed decisions.

    A fascinating revelation in the book is the role of judicial assistants in the preparation of memoranda. These assistants play a pivotal role in the process, delving into the details and complex connections within a case that might exceed the judges' own knowledge. While the judges maintain an overview of the case, the assistants become invaluable resources for clarifications and supporting case law.

    The book emphasizes that memoranda serve as a pre-judgment of the case, guiding adjudicators in interpreting and applying relevant legal norms. Although judges are not bound by the advice of their assistants, the influence of the memoranda on their decision-making process is profound. This revelation opens up a thought-provoking discussion on the interplay between judicial independence and the reliance on these hidden gems of insight.

    The book offers a comprehensive and insightful exploration of the challenges posed by varying degrees of factual complexity in international cases. The book skillfully navigates through the increasing trend of fact-intensive disputes, driven by the specialization of the international bar and the use of scientific and technical evidence in legal proceedings. It sheds light on the struggles faced by international courts, particularly the ICJ and the Appellate Body of the WTO, in effectively processing voluminous case files and evaluating the legal merits of appeals.

    The case involving Canadian company Kingsland Mining Corp. and the government of Turkey provides a compelling backdrop to examine the complexities of fact-finding in international disputes. Carlos, the researcher tasked with fact-finding, grapples with conflicting case law on legitimate expectations, presenting precedents supporting investor claims based on government representations and those that reject them. This highlights the challenges adjudicators face in navigating diverse interpretations and applying legal norms to specific cases.

    In a parallel narrative, the book follows Sophie's task of interpreting a historical document, the Sultan of Sulu's 1878 deed granting rights over North Borneo to European explorers. The dispute surrounding the term "padjak" in the deed underscores the significance of historical context and linguistic interpretation in international cases. Sophie's journey of unraveling the intricacies of this historical document exemplifies the challenges faced by researchers and interpreters in international adjudication.

    This book is an intellectually stimulating work that appeals to legal scholars, practitioners, and anyone interested in gaining knowledge on theoretical insights and real-world case studies in International law.

    Dr.Prema E is an Associate Professor and Assistant Dean at VIT School of Law, Chennai. & Ragul OV is a Student at VIT School of Law, Chennai

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