It is surprising that practitioners have not linked the professional responsibility of international lawyers to the obligations that apply in national systems to ensure the integrity of the rule of law and respect for the interests of the judiciary. Such a link should be established. Harry Aitken is International Legal Counsel at the Australian Department of Foreign Affairs and Trade. Previously, he was a member of the judiciary of Judge James Crawford at the International Court of Justice. There are also certain institutional tasks contained in the rules and practice of international tribunals. Unlike the institutional obligations described above, these obligations are created and enforced by international institutions rather than national institutions. The International Criminal Court, for example, has a comprehensive code of ethics. In addition, some of the Practice Directions of the International Court of Justice are based on the “proper administration of justice” (Instructions VII and VIII). Beyond this limited patchwork of responsibilities, however, there is little evidence as to whether and how institutional tasks apply to the core (non-contentious) work of international legal counsel. In practice, institutional obligations generally apply in relations with the courts. In New York, for example, lawyers have a number of litigation-related obligations, including notifying a court of legal authority prejudicial to their client`s case and not encouraging a person to leave the jurisdiction in order not to be available as a witness (New York Lawyer`s Code of Professional Responsibility, pp. 59-61).
In the context of the British inquiry into Iraq, Wood spoke of the implications of the absence of a tribunal on the institutional functions of the legal adviser (Report of Iraq Inquiry Vol. v, § 391): Although this is not the place to give an exhaustive opinion on the content of the institutional tasks of international legal advisers, a potential model for future discussions and debates could be based on the duties of representation, It is also important to note that the Commission has not yet presented a proposal for a directive on the protection of international law. These could be understood as follows: Addendum: Given the common law approach to understanding institutional obligations, comments from international lawyers with a background in civil law are welcome. In a political climate that fosters interdependence among States, international law is constantly evolving and is increasingly becoming a key factor in the development of inter-State relations. The Council of Europe is therefore endeavouring to co-ordinate the activities of its member States in this field. Your new comment has raised a very stimulating question about the practice of international law. This duty is to ensure that international law and the institutions that produce and apply it remain central to foreign policy decisions. It contains both a negative aspect – to prevent erosion and a positive aspect – to ensure that international law remains relevant in international relations. The negative aspect may come into play, for example, when a legal adviser advises a Government on the risks of withdrawing from a treaty or institution that assumes international responsibility. The positive aspect arises when the legal adviser promotes the application or development of international law and its institutions, for example by negotiating a treaty to solve an emerging problem. Of course, there are times when it is appropriate for a state to terminate a contract or maintain normative ambiguity, but the duty to protect is for the lawyer to ensure that these decisions take into account the institutional or systemic risks incurred. We know that international lawyers must respect standards other than the interests of their clients.
As Richard Bilder has argued, the international legal adviser is not an “apologist” or a “hired weapon” for the state. But the source and content of these standards remained abstract, and practitioners largely avoided the term “duty” in favor of a more secure and subjective nomenclature (an exception being Harold Koh`s “duty to declare”). For example, Elizabeth Wilmshurst stated that “legal advisers should reflect a responsibility to the international legal system as a whole” (emphasis added). Bethlehem said legal advisers are the “gatekeepers” of the “clear lines of the law,” but those lines “have a more pixelated quality” when sharp. This duty is to present the best interpretation of the law – the right pixel – in circumstances where the role of legal counsel is to enable and support a state in implementing its political priorities.