‘La Cour!’ Despite an optimistic weather forecast, it is a cold and gloomy morning in The Hague. A faint sunlight filters through the stained glass windows of the Great Hall of Justice and reflects off the brass chandeliers hanging from the vault. Resplendent at the centre of a large oil painting, the Goddess of Peace gazes upon the room packed with people. The attendees are all in business attire, except a handful of attorneys wearing the formal garments of their national bars. The tension is palpable, the atmosphere almost rarefied. Someone in the front row lets out a raucous cough; someone in the back is nervously clicking a pen.

In a few moments, the Goddess’ wishes will be granted. The International Court of Justice (ICJ) is about to render its judgment in a complex territorial dispute between the Philippines and Malaysia. After decades of heated controversy, bitter confrontation, and even deadly skirmishes, this matter will be settled once and for all. The Law will be said, as per the ancient meaning of ‘jurisdiction’. Or, if you prefer, the Law itself will make its eternal voice heard through the temporal mouth of the Court’s President, Judge José Ignacio Rosas.

Upon hearing the bailiff’s stentorian announcement – ‘La Cour!’ – the whole crowd stands up. Fourteen men and three women, all in black robes and white jabots, slowly emerge from a small side door. One by one, they take their assigned seats at the podium. After a moment of silence, President Rosas clears his throat:

The rite is beginning. It will go on for about two hours, during which the President will read out the Court’s lengthy decision almost verbatim, before turning the floor to the Registrar for the statement of the dispositif (the operative provisions of the judgment). Everyone is ready to join in this communion, this celebration of the triumph of Reason and Fairness over the irrationality and cynicism of Politics. The Great Hall of Justice is transfiguring, once again, into the inner sanctum of international law, under the Goddess’ benevolent watch.

Amid the solemnity of the ceremony, no one notices a young lady sitting in the overhead balcony, next to the press. Fiddling with her red curls, Sophie contemplates the scene from above, her pale green eyes searching for familiar faces in the crowd. She immediately recognizes her boss, Judge Jürgen Lehmann, sitting to the right of President Rosas. Sophie has not spoken to her mentor for days, precisely since the text of the judgment went out for the final editing. She realizes, with some surprise, that this is the longest silence between them since the dispute kicked off, over three years ago. If one were to count, Sophie has since spent more time with Judge Lehmann than with anyone else, her girlfriend Norma included. The old ‘German Lion’ – a nickname Jürgen Lehmann pretends to dislike – looks proud and relaxed today. Who wouldn’t be, after emerging victorious from a fight over the outcomes of a case? Sophie is equally satisfied, but her satisfaction is tinged with pensiveness. All the battles they fought together, their shared struggles to cement the majority opinion, and the evenings spent trying to overcome unexpected stumbling blocks, will be forgotten as soon as the ritual ends.

As she is about to get lost in her thoughts, Sophie spots her friend Filibert N’Diaye, a senior associate with Burnham & Hutz LLP, sitting next to the Philippines’ lead counsel (what’s his name? Liam? Leonard? Sophie can’t remember). Filibert looks exhausted. He must be relieved that this whole business is finally coming to an end. No matter the final result – and Sophie already knows the result will not be in his client’s favour – Filibert’s late shifts in the office are over. Soon, he will be free to take holidays, spend some long overdue time with his family, and eventually turn to a new dossier, already waiting on his desk. Sophie remembers the conversations they had in their law school days, sipping coffee at a Starbucks near Astor Place. The future was uncertain back then, as New York University (NYU) tuition fees had left them both in need of decently paying jobs. Still, Sophie and Filibert were confident that, one day, they would join the ‘invisible college of international lawyers’Footnote ¹ – the exclusive club of women and men who sit at the centre of the international legal order. Little did they know that their journey would be that quick and that, only a few years later, they would find themselves together in that room.

Sophie’s mind keeps wandering. Some of her former teachers and fellow PhDs are probably watching the live webcast. As soon as the judgment becomes public, legions of scholars will start appraising its merits, dissecting its every technical detail, and filling in the blanks in the Court’s reasoning with deep theoretical understanding. The more traditional pundits will no doubt lament a certain lack of clarity in the Court’s analysis. In particular, they may argue that the Court’s reading of a crucial legal source – an ancient deed signed by His Majesty the Sultan of Sulu – lacks the rigour required under the Vienna Convention on the Law of Treaties (VCLT).Footnote ² Other commentators will take a less technical and more normative stance. They may praise the Court’s willingness to move past the colonial history of South-East Asia, or trace the evolution of the Court’s views on statehood from 1947 to date. Yet other observers will focus on the discursive elements of the opinion. They may, for example, count the number of times the Court has referred to the decisions of other international tribunals, in order to test whether, in recent years, the ICJ has been striving to reunify a fragmented legal system.Footnote ³ Whatever the angle, today’s decision will dominate international law blogs for quite some time: ‘the Court meant this’; ‘the Court meant that’; ‘long live the Court’.

Sophie bets that the inevitable plethora of articles and case notes will all share one essential feature: they will take today’s judgment as the starting point of the analysis – the irreducible building block upon which to develop their hypotheses. Only a few will dare to peek behind the curtain and investigate the processes that led to the formation of the judgment. And even those who seek to discern the true ‘intention … du juge’ (usually to prove either its ‘liberté … radicale’ or, conversely, its being ‘logiquement … déterminée’Footnote ⁴) will concentrate their efforts on the text that President Rosas is now reading before his distinguished audience.

Who could blame them? After all, that text constitutes the sole tangible result of international adjudication. That orderly series of words, sentences, and paragraphs is the artefact that embodies the ethos and aspirations of our discipline. If you deconstruct the artefact, its magic vanishes. A believer cannot question the manner in which the scriptures came about, lest they lose faith in the voice of God. A respectable international lawyer cannot unravel the hidden ways the Court’s ‘holy writs’Footnote ⁵ were cobbled together, lest they destroy the very foundation of their inquiry and undermine the possibility to say anything meaningful. In law, as in religion, you are supposed to play with what you are given. Right?

Well, not quite. At least for Sophie, today’s judgment is not the starting point, but the end of a strenuous journey that began over three years ago, when the Philippines decided to turn its political grievances against Malaysia into a set of legal claims. Considering what has happened since, that seems like a lifetime ago. As she silently watches the ceremony unfold, Sophie cannot but grin and ponder:

For a split second, Sophie’s eyes cross those of the Goddess of Peace. Perhaps due to the emotion of the moment, or perhaps because of the fatigue accumulated, Sophie could swear that the Goddess is winking at her.

What a three years it has been.

*

The story you are about to read is the story of those three years. Or, more accurately, it is the story of the practices, the interactions, and the confrontations that occur every day within the international judicial community. Throughout the long and winding path that leads to an international judgment, countless people work incessantly to promote their competing views about the persuasiveness of legal argument,Footnote ⁶ assert their authority over the issues at stake,Footnote ⁷ and maximize their capital within their professional field.Footnote ⁸ These endogenous dynamics, so often overlooked in scholarly accounts, are not a corollary to the judicial process – they are the process. We can hardly understand the results of an international case without inquiring into the discrete operations that marked its every step. Likewise, we cannot explain the behaviour of international courts and tribunals by focusing on the judges alone, in isolation from the professional milieu that surrounds them. Agents, counsel, advisers, scientific experts, clerks, registries, secretariats, and academics – they all partake in the development of legal discourse and the definition of judicial outcomes.

The idea behind this book, simply put, is that the ways in which these inner circles of legal professionals interact, cooperate, and clash in their everyday routines have a crucial impact on international judgments: more so, dare we say, than the substantive norms that adjudicators are called upon to interpret and apply; and more so than the external political pressure exerted on international courts and tribunals. Some of you may dismiss this idea as obscene. We would agree. The word ‘obscene’ comes from the Latin ob scaena, meaning ‘off stage’. Indeed, this story seeks to mark a symbolic movement away from the ceremonial courtroom setting where the decision is read – where international law is said – towards the muted ambience of deliberation rooms, the buzz of printers in the backroom offices, the friendly chatter of cafeterias – where international law is constructed.

The plot will take us to the seats of five international adjudicative bodies: the ICJ, the European Court of Human Rights (ECtHR), the Inter-American Court of Human Rights (IACtHR), the World Trade Organization (WTO) dispute settlement system, and an ideal-typical investment arbitral tribunal. There, we will trace the unfolding of judicial proceedings from the preparatory stages, when the complaining party starts to put together its case, to the closing moment, when the final judgment is issued to the public. At every turn, we will reveal the myriad ways in which Sophie, Filibert, Judge Lehmann, and various other members of the international judicial community contribute to the process. We will see, among other things, how counsel help their clients transform amorphous masses of facts and grievances into structured sets of claims and arguments; how institutional bureaucracies shape the adjudicators’ decisions by conducting legal research, preparing memoranda, and drafting the rulings; and how specialized scholars systematize case law and develop a common grammar for a shared understanding of the discipline.

Be warned: in the pages that follow, you will not find an exhaustive review of the official powers vested in those actors, nor a treatise on the formal rules that govern their procedures. What you will find is a detailed account of the social structures, the professional relationships, the shared assumptions, the tacit understandings, and the sites of struggle that make up the international judicial field. By the end of the book, most of you will have discovered a wealth of ‘otherwise hidden activities that illuminate international tribunals’ inner workings’.Footnote ⁹ Some of you may have come to appreciate the ‘vascularization’ and the numerous connections that allow judicial institutions to breathe.Footnote ¹⁰ All of you will have been reminded, time and again, that ‘[i]nternational law is a group of people pursuing projects in a common professional language.’Footnote ¹¹

*

If you are still debating whether to continue reading, let us say that we are neither the first nor the last storyteller to attempt such a feat. In recent years, numerous voices have emerged that stress the need to open the ‘black box’ of international courts and tribunals and shed light on their inner workings.Footnote ¹² This call to arms does not arise in a vacuum but marks the next step in the evolution of scholarly sensibilities, eager to investigate the role of international adjudication in contemporary world affairs.

The literature on the topic has come a long way and nowadays offers a rich menu of approaches drawing from international law, international relations, organization theory, and social studies. Yet, we would argue, most observers still conceive of international courts as ‘reified collectives forming separate and self-standing units of analysis’,Footnote ¹³ thereby remaining oblivious to the socio-professional communities in which adjudicators are immersed. A brief overview of the main narratives may help elucidate this argument and better explain why we see merit in telling this story.

Traditional scholars moved from the ‘uncontroversial’ (!) premise that the international legal system was nothing but ‘the aggregate of the legal norms governing international relations’.Footnote ¹⁴ That system was populated by abstract entities, such as sovereign states and the other formal ‘subjects’ of international law,Footnote ¹⁵ seeking protection of their rights before ‘apersonal’ adjudicative bodies.Footnote ¹⁶ International judges were seen – and, perhaps, still see themselves – as the impartial ‘guardians of the law’.Footnote ¹⁷ Herculean individuals of ‘superhuman intellectual power and patience’,Footnote ¹⁸ they were tasked with ascertaining the preordained meaning of the relevant norms,Footnote ¹⁹ clarifying their ambiguities,Footnote ²⁰ and mechanically applying them to the disputed facts.Footnote ²¹ To better carry out these duties, judges could resort to a host of codified doctrines, such as the methods of treaty interpretation set out in Articles 31 and 32 of the VCLT, which offered objective and neutral guidance on how to read legal sources. Rigorous and uniform adherence to those doctrines would enable the interpreter to ‘deduce the meaning exactly of what ha[d] been consented to’ and reach logical and unassailable conclusions.Footnote ²²

This formalist conception, rooted in ‘classical legal thought’,Footnote ²³ knew its peak in the aftermath of the Cold War. That is the moment when international law entered its ‘post–ontological era’,Footnote ²⁴ that is when its effectiveness and ‘lawness’ ceased to be questioned. Indeed, the fall of the Berlin Wall was accompanied by the explosive expansion of international adjudication. Within the span of a decade, dozens of new judicial mechanisms were established, including the WTO dispute settlement system, its homologue under the North-American Free Trade Association (NAFTA), the International Tribunal for the Law of the Sea (ITLOS), the International Criminal Tribunals for Former Yugoslavia (ICTY) and Rwanda, the International Criminal Court, and the mixed tribunals for Lebanon and Sierra-Leone. Investor–state dispute settlement (ISDS), which had remained dormant throughout the 1980s, suddenly rose to prominence as a central governance node.Footnote ²⁵ Preexisting mechanisms, like the ECtHR, were overhauled to facilitate the filing of complaints and broaden the pool of potential applicants. As a result, the current landscape of international adjudication sees the simultaneous operation of roughly thirty standing courts and hundreds of ad hoc tribunals.Footnote ²⁶ Together, these bodies have rendered almost 40,000 rulings on a wide array of contentious political, economic, and security issues.Footnote ²⁷

As the dockets filled up, international lawyers rejoiced. At last, international law had teeth.Footnote ²⁸ At last, they could focus on ‘real law’ – real cases decided by real judges – on par with domestic law specialists.Footnote ²⁹ The ‘new terrain’Footnote ³⁰ of international adjudication led to the proliferation of treatises systematizing the case law of the various courts, evaluating the quality and rigour of their reasoning, and exploring a variety of jurisdictional and procedural matters.Footnote ³¹ Long relegated to the margins of scholarly analysis, judicial interpretation suddenly became the obsession of international lawyers, playing out as ‘the functional equivalent of truth’ in international legal discourse.Footnote ³²

To be sure, some feared that the proliferation of adjudicatory bodies, each with its own focus on a sectoral subject matter (human rights, trade, investment, law of the sea, etc.), might give rise to conflicting rulings and threaten the coherence of ‘general’ international law.Footnote ³³ Yet, these were but ‘anxieties’Footnote ³⁴ that could be easily assuaged by resort to conflict-management techniques like ‘systemic integration’,Footnote ³⁵ lex posterior, lex specialis,Footnote ³⁶ res judicata, lis pendens, judicial comity,Footnote ³⁷ and the like.Footnote ³⁸ A careful use of these tools would enable courts to ‘interpret away’ most potential frictions.Footnote ³⁹ At any rate, the international community had little time to waste with these qualms: it was too busy celebrating the judicialization of international relations,Footnote ⁴⁰ the victory of the international rule of law over the cynicism of state politics,Footnote ⁴¹ and the new normalcy where ‘the rules of civilised behaviour would come to govern international life’.Footnote ⁴²

Along this triumphal march, some prophesied that international judges would coalesce into an ‘integrated and interconnected system’Footnote ⁴³ forged more by their ‘common function’ than by the differences in the sectoral rules they applied and the parties appearing before them.Footnote ⁴⁴ The emergence of this ‘global community of courts’ would ultimately lead to a ‘global jurisprudence’ based on common values like due process and universal human rights.Footnote ⁴⁵ Amid the general enthusiasm, those who dared questioning the objectivity of law or alluded its underlying ideologies were dismissed as regressive, outmoded, and opposed to the enthronement of Reason.Footnote ⁴⁶

Thankfully, it did not take long before more critical accounts of international adjudication saw the light of day. In the 2000s, a new cohort of scholars began to look beyond the formal features of international norms and procedure, and expanded the inquiry to include the political environment where international courts operate. Inspired by international relations, these analyses sought to establish ‘correlations between inputs (such as the identity and relative power of the parties, or the backgrounds of the judges) and outputs (who wins, who loses)’, while ‘exploring judicial independence and institutional design’.Footnote ⁴⁷

For instance, the recent wave of scholarship concerning the legitimacyFootnote ⁴⁸ and authorityFootnote ⁴⁹ of international courts examines how adjudicators command respect for and compliance with their decisions. The core claim is that a court’s ‘right to rule’Footnote ⁵⁰ depends on whether the addressees of its decisions are willing to accept their legal authority even when they are adversely affected by them.Footnote ⁵¹ Several metrics have been proposed to measure legitimacy. Some metrics relate to factors intrinsic to the courts themselves, like the formal delegation of powers by their constituent statesFootnote ⁵² or the degree of impartiality and fair treatment of the parties.Footnote ⁵³ Other metrics concern the reception of judgments by the audience: the sensible application of the relevant rules; the economy and clarity of the reasoning; the ability to solve pressing problems and set viable precedents; the type and quantum of remedies granted; etc.Footnote ⁵⁴ Along similar lines, some have discussed the recent backlash against international adjudication from political actors and member states.Footnote ⁵⁵

This new focus on the relationship between courts and their environment led to a number of important discoveries. First, adjudicators were no longer seen as mere guardians of the law but, instead, as political actors constantly reacting to the pressure of various stakeholders (governments, business conglomerates, civil society, etc.). These ‘external constraints’Footnote ⁵⁶ would force courts to adopt judicial strategies and interpretive postures that ‘promote the expression of certain types of interests’ and ‘suppress that of others’.Footnote ⁵⁷ Decisions perceived as erratic or contrary to the audience’s expectations would likely face greater resistance, lower compliance rates, or even the threat of dissolution of the courts.

Second, the pluralism of the environment recast the fragmentation of international law as a political problem. In a disaggregated world, sectoral constituencies create specialized legal regimes to push their partial interests onto the global arena. Trade law, for instance, rests on the premise, typical of mercatores from developed countries, that the liberalization of commerce is a crucial component of development and prosperity.Footnote ⁵⁸ Socioeconomic human rights are meant to protect the poor and the marginalized, with a ‘collectivist’ flavour to them.Footnote ⁵⁹ Investment arbitration is a means to depoliticize the frictions between multinational corporations and host states by conferring direct rights to investors and bypassing the hurdles of diplomatic protection.Footnote ⁶⁰ And so on. Seen from this angle, the proliferation of sectoral regimes and the attendant courts is the vehicle through which political differentiation is transposed from the domestic sphere onto the international plane.Footnote ⁶¹

This, the argument continues, has profound repercussions on judicial interpretation, and calls into question the possibility of universality and coherence across different fora. A court or tribunal with a sectoral focus will be more preoccupied with preserving its ‘internal legitimacy’ – that is, catering to the interests of the sector’s insiders – than with its ‘external legitimacy’ – that is, giving purchase to the beliefs of outsiders.Footnote ⁶² So, for example, a human rights court will be institutionally ‘programmed’Footnote ⁶³ to prioritize the promotion of fundamental freedoms over, say, rational resource allocation; a WTO panel will be more inclined towards the imperative of trade liberalization than towards environmental protection; an investment arbitral tribunal will tend to maximize the protection of investors to the detriment of the regulatory autonomy of the host state; etc. Hence, for the proponents of radical pluralism, the pressure exerted on each sectoral court by its political environment determines the emergence of a ‘structural bias’Footnote ⁶⁴ that largely predetermines the outcomes produced in the international world.

So where does all this leave us? Actually, we would argue, in a bind. Most of the aforementioned literature focuses on the output of international adjudication, that is, the judgments themselves. Conversely, few authors dare to explore the input of adjudication, that is, the series of intermediate steps that lead to the formation of those judgments. To this day, we know surprisingly little about ‘the everyday practices and social relationships through which international judicial decisions are produced’.Footnote ⁶⁵ What happens behind the closed doors of deliberation rooms? How are opinions formulated, drafted, revised, and translated? How do adjudicators structure their relationship with their registries, secretariats, clerks, and other court officials? How much do they respect or fear the critiques of journalists and academics? With some notable exceptions,Footnote ⁶⁶ these questions remain largely unanswered. The few attempts to open the black box tend to focus on judges aloneFootnote ⁶⁷ – who they are, where they come from, etc. – without paying the same attention to the multitude of professional actors that surround them in their daily work.

As we will argue,Footnote ⁶⁸ this oversight may not be completely unintentional. For now, let us just say that existing scholarship suffers from a number of blind spots. For one, it does not tell us much about the way international courts and tribunals actually function: which actors contribute to the judicial process, how labour is allocated among them, what strategies they pursue… The spotlight remains firmly on the Herculean adjudicator, a ‘loner’ who ‘converses with no one’ and ‘has no encounters’Footnote ⁶⁹ except with their colleagues on the bench.

But there is another, more insidious problem with treating international courts as ‘unitary actors’Footnote ⁷⁰ that speak only through their decisions. It is the risk of painting a reified, ‘deterministic’Footnote ⁷¹ picture of the factors that drive judicial outcomes. The decisions of international adjudicators are explained by reference to some other reality, invisible to their eyes, that guides their every action. For traditionalists, that reality is the law itself: a concrete entity with its own inherent logic and rationality, somehow independent of the people that routinely create, interpret, apply, resist, and are bound by it.Footnote ⁷² For critics, it is the political environment – the set of ‘deeper, impersonal forces’Footnote ⁷³ – that exerts its ineluctable pressure on courts and pushes them towards predetermined results. In either case, the actual people involved exercise little agency, squeezed as they are between the Scylla of formal law and the Charybdis of structural bias. Whatever they think, say, or do, they will eventually have to surrender to a higher voice. When taken to an extreme, both formalist and critical narratives freeze the process into a static image.

*

This is where our story kicks in. When matter looks inert, it is sufficient to place it under a microscope to realize that its molecules are still moving, interacting, colliding. We, too, are going to place international adjudication under a microscope and observe the movement, the interactions, the collisions that agitate it.

The word ‘microscope’ is used deliberately and should not be misread. When we zoom in on an object, we are not merely watching that object close-up: we are seeing something new while losing sight of something else. ‘Each scale reveals a phenomenon and distorts or hides others’.Footnote ⁷⁴ Likewise, the plot that is about to unfold does not simply provide more detail about the international judicial process, or merely augment the resolution of the image we already have. Instead, its focus on the small-scale, the mundane, and the everyday casts the whole process in a different light and brings to the fore aspects that would otherwise remain ‘unmarked’.Footnote ⁷⁵ A proper use of the microscope requires certain analytical shifts, certain adjustments to the angle of vision, which we might find unfamiliar – or even uncomfortable – given our common disciplinary sensibilities as international lawyers.

The first shift concerns the identity of the actors involved in the process. From our usual vantage point, we tend to equate those actors with the official subjects of international law. When we observe an ICJ hearing, we see a confrontation between, say, the Philippines and Malaysia. When we gaze at the Court itself, we see a monolithic body that speaks with ‘one institutional voice’.Footnote ⁷⁶ Individuals and social groups are relegated to the margins of our field of vision. They become visible only when vested with the official standing to participate in proceedings (as with individuals in human rights cases or investors in ISDS).

But what if, looking more closely, we saw the same ICJ hearing as a professional contest among agents, advisors, and counsel? What if, instead of one cohesive institution, the Court suddenly appeared as a bundle of social relations that tie together – and sometimes pit against each other – judges, clerks, experts, and registry officials? And what if, rather than the embodiment of legal abstractions, individuals were revealed as playersFootnote ⁷⁷ who engage in a game, deploy strategies, and advance interests in a dynamic social space?

You get the gist: viewed through the optics of the microscope, the official actors of international law slip into the background, whereas the socio-professional actors that incarnate them come into focus. Seen from this angle, the system looks less like a grid of legal entities, and more like a network of individuals ‘engaged in a shared enterprise with broadly similar understandings of what they are doing and why they are doing it’.Footnote ⁷⁸ This network, which we call the international judicial community, comprises the ‘mutually recognised professionals’ who are intimately familiar with the practice and the study of international adjudication.Footnote ⁷⁹

Judges and arbitrators are, of course, the most visible of these professionals – visible enough not to require a microscope at all. However, the community also encompasses a panoply of other actors who occupy less conspicuous positions: agents, counsel, advisors, court officials, specialized scholars, and the like. Together with the adjudicators, these professionals are in charge of running the judicial machinery in its routine operations. Each from their own position, they contribute to all phases of the process: the preparation of written and oral pleadings; the formulation of legal arguments; the collection and assessment of factual evidence; the allocation of evidentiary burdens; deliberations; the writing of opinions; and the critical appraisal of jurisprudence.Footnote ⁸⁰

As we will see,Footnote ⁸¹ the international judicial community is not coextensive with the ‘immense’Footnote ⁸² group of people involved in international law. Rather, if courts and tribunals stand ‘at the centre of the world of the professional international lawyer’,Footnote ⁸³ then the community constitutes the innermost circle of that world, that which inhabits the immediate vicinity of the centre. Its members are uniquely placed to shape judicial outcomes, and zealously defend their position from outside interference. Indeed, much of the output of international courts is explained by the internal properties of this ‘social universe … which is in practice relatively independent of external determinations and pressures’.Footnote ⁸⁴ Pointing the microscope at the community means shedding light on its social structures, its professional dynamics, the forms of cooperation and competition among its participants, and more generally the ‘relations of mutual engagement by which they can do whatever they do’.Footnote ⁸⁵

The second optical effect is about the nature of the process and the operations that define it. Thanks to years of studies and disciplinary acculturation, we international lawyers are trained to see legal outcomes as a result of the interplay of rules, principles, and procedures. We are used to parsing through the sources of international law listed in Article 38 of the ICJ Statute;Footnote ⁸⁶ discussing the meaning of treaty terms through the lens of the VCLT; scrutinizing the procedures set out in the ICJ Rules of CourtFootnote ⁸⁷ or the WTO Dispute Settlement Understanding (DSU);Footnote ⁸⁸ and dissecting judicial opinions to test their persuasiveness and coherence. Of course, we come to these tasks from different places, different traditions, and different levels of technical prowess. Debate and disagreement about normative constructs are inherent – not to mention lucrative – to our profession. Yet, those constructs remain firmly anchored in official documents and formal sources. The legal objects that capture our attention tell us how legal processes are ‘supposed to operate’, not ‘how they actually operate’.Footnote ⁸⁹

But if, once again, we observe this landscape through the microscope, we see formal rules and principles fade into the distance, replaced by a myriad of socio-professional practices. The official normativity of legal sources gives way to the discursive normativity of narratives, strategies of persuasion, expert vernaculars, and modes of world sense-making.Footnote ⁹⁰ Behind the unified and apodictic interpretation of a treaty, we discover a plurality of competing arguments, logics, and postures, whose relative merits – their being ‘correct’ or ‘incorrect’ – depend on the standards of acceptability collectively held by the community.Footnote ⁹¹ In lieu of court procedures on paper, we glimpse the ‘competent performances’ and the ‘socially meaningful patterns of action’Footnote ⁹² that give materiality and breathe life into the various stages of litigation. And rather than a conclusive and coherent text, the international judgment is revealed as ‘the product of a symbolic struggle between professionals possessing unequal technical skills and social influence’.Footnote ⁹³

This analytical shift from norms to practices helps answer questions that have long vexed legal theorists. First, as will be argued,Footnote ⁹⁴ practices are a key driver of constraint and freedom, structure and contingency, continuity and change in international adjudication. On the one hand, intersubjective socialization and patterned repetition allow for shared assumptions and expectations to crystallize and become embedded in the community, thereby ensuring certainty and predictability in judicial outcomes at any given point in time. On the other hand, the endless struggles among community members – which, in turn, reflect their power relations and relative social capital – enable the contestation of pre-established patterns, the opening of paths to resistance, and the creation of avenues for the gradual evolution of judicial systems.

Second, practices explain the level of fragmentation and convergence among sectoral regimes in international law (human rights, trade, investment, etc.). Each such regime orbits around a specific sub-community with its own internal dynamics, preoccupations, and biases. As the habits and worldviews of the various sub-communities develop largely independently of each other, they often end up colliding over cross-cutting themes. Yet, the degree of operational ‘closure’ or ‘openness’Footnote ⁹⁵ of a sectoral regime is not carved in stone, but evolves over time as a result of the internal struggles and negotiations of the participants in each sub-community.Footnote ⁹⁶

Our microscope calibrated, we are ready to pick up where we left Sophie – immersed in her thoughts in the Great Hall of Justice – and narrate her (non-)adventures up to that moment. Of course, this story is not hers alone, but involves a multitude of characters that will be introduced along the way. We will meet zealous diplomats, ambitious attorneys, industrious bureaucrats, promising clerks, astute academics and, of course, a fair number of judges and arbitrators. Everyone has a part to play, an agenda to pursue, a constellation of beliefs and idiosyncrasies. As the plot unfolds, the threads will become increasingly interwoven, slowly revealing the web of invisible ties that gives international law its mysterious force.

The events are narrated more or less chronologically. Chapter 2 flashes back to the first days of Sophie’s employment at the ICJ registry, and sees her and her girlfriend Norma mull over the concepts that lie at the core of this book: the international judicial community, its social structures, and its everyday practices. This initial discussion helps set the stage, refine the theoretical coordinates of the story, provide some context for the actions of its protagonists, and foreshadow their trajectories through the judicial process. From there, the plot follows the main steps of a typical set of international judicial proceedings: the complainant’s decision to initiate the dispute and the establishment of its legal team (Chapter 3); the parties’ filing of written submissions and rebuttals (Chapter 4); the processing of the case file by the court’s legal bureaucracy (Chapters 5 and 6), including the summarization of the parties’ arguments (Chapter 7), the preparation of internal memoranda (Chapter 8), the examination of the state conduct at issue (Chapter 9), the preliminary assessment of the disputes facts and evidence (Chapter 10), the identification of the norms applicable to the case (Chapter 11), and the interpretation of the meaning of those norms (Chapters 12 and 13); the conduct of hearings (Chapter 14); the court’s deliberations (Chapter 15); and the drafting and revision of the final judgment (Chapter 16). Chapter 17 closes the circle. If the story opened with a solemn view of the Great Hall of Justice, it ends in the quiet of a living room on the other side of The Hague.

Of course, the selection of these steps as particularly noteworthy is the fruit of a deliberate choice. These are the moments where the power of the international judicial community is most keenly felt, and where its background practices contribute most directly to the definition of judicial outcomes. Inevitably, the selection obscures other aspects of life at the court and neglects many actors who, in a way or another, play a more indirect role in the process. Think, for instance, of state delegates negotiating the appointment of international judges; interpreters and translators dealing with multilingualism in the proceedings; support staff physically handling case files and maintaining the correspondence between the court and the parties; website managers aggregating and organizing case law to make it more easily accessible to the public; and so forth.

Equally selective is the choice of the ICJ, the ECtHR, the IACtHR, the WTO, and an investor–state arbitral tribunal as the five scenarios in which the story unfolds. Why only those five? What about the ITLOS, international criminal tribunals, and regional courts? Fair point: again, we make no claim of exhaustiveness. Not only are we being selective in the choice of our case studies but we are also assuming the possibility to discern common patterns across them. The courts and tribunals examined in this book differ widely in terms of jurisdictional powers, areas of competence, and institutional design. Some adjudicative bodies (like the ICJ and the WTO) handle disputes between sovereign states, while others (like human rights and ISDS tribunals) typically hear complaints brought by private persons and entities. The jurisdiction of some courts (e.g. the ICJ) is subject to the consent of both parties,Footnote ⁹⁷ whereas that of other courts (e.g. the WTO and the ECtHR) is automatic and unconditional.Footnote ⁹⁸

Finally, the procedures of standing courts are governed by their respective statutes and rules, while the procedures of ISDS tribunals are tailored to the specifics of each case. Following initial consultations with the parties and the co-arbitrators, the president of the tribunal prepares so-called Procedural Order No. 1, a document that sets forth the fundamental procedural aspects of the dispute, including the applicable law and arbitration rules; the place of the arbitration and the location of hearings; the possible bi- or trifurcation of the proceedings into jurisdictional issues, merits, and quantum; the arbitrators’ fees; etc.

These and other distinctions have obvious repercussions on the daily activities of the professional sub-communities concerned. Accordingly, we will take them into due account whenever appropriate. However, our analysis of the various systems will also reveal striking recurrences in the patterns of structured practice, the perceptions of competence, the argumentative techniques, and the social dynamics of our professional field. A modicum of blurriness may even help the story gather pace. After all, is it even ‘always an advantage to replace an indistinct picture by a sharp one? Isn’t the indistinct one often exactly what we need?’Footnote ⁹⁹