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International law scholars as amici curiae: An emerging dialogue (of the deaf)?

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Abstract

International law scholars frequently seek to participate in international legal proceedings as amici curiae. Often they do so by ‘piggy-backing’ onto the submissions of NGOs and other advocacy groups. Occasionally – but increasingly in recent years – they do so in their own names, purporting to offer ‘pure’ academic expertise, and generating certain expectations of scholarly neutrality. This article focuses on the latter trend, which the authors argue has the potential to re-shape the scholar-adjudicator dialogue in interesting ways. Under the traditional approach towards ‘teachings’, the decision of whether, how and with whom to engage is firmly in the hands of the adjudicators. The proliferation of academic amicus briefs threatens to disrupt this arrangement. It also brings certain benefits: the briefs are often more ‘on point’ than doctrinal writings, while openness to unsolicited academic submissions encourages plurality and reduces reliance on reputation as a measure of scholarly quality. Our survey of the emerging practice across various international courts and tribunals indicates that adjudicators tend to be reticent when it comes to the reception of unsolicited academic amicus briefs. However, we identify several instances of productive engagement. This leads us to conclude that it would be unduly gloomy to characterise the emerging practice as a ‘dialogue of the deaf’. A fairer assessment would be that the academic amicus trend is bringing about a modest adjustment in the way that international law scholars and adjudicators engage with each other.

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Original languageEnglish
Pages (from-to)1081-1101
JournalLeiden Journal of International Law
Volume29
Issue number4
Early online date2 Nov 2016
DOIs
StatePublished - Dec 2016
Peer-reviewedYes

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ID: 67120593

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