International law as expert knowledge: exploring the changing role of international lawyers in national contexts

This chapter explores the role of international lawyers when they use their legal knowledge in domestic settings; that is, when they act before domestic courts or other domestic institutions, or when they advise domestic officials or private actors for the purpose of domestic transactions. International lawyers derive their influence over the behaviour of domestic agents from being able to provide answers to what ‘international law is’ concerning a given issue. However, the international lawyer lives a professional experience that is marked by the perception of pluralism: different legal regimes provide different answers that accommodate different agendas, thereby making it very difficult to meet the demands emanating from domestic settings. The international lawyer acting in domestic law today faces at times a paradoxical experience: while she is part of an international legal consciousness that is marked by the experience of pluralism, she operates in a domestic environment that reflects a project of legal hierarchy and the ambition of certainty. The paradoxical experience emerges from the regulatory turn in international law. Domestic laws are increasingly vulnerable to pressures from external law-making, not only in traditional areas, such as human rights and investment protection, but also in typically local concerns such as health standards and public utilities regulation. This transformation has been described generally as a ‘regulatory turn’ in international law, in which extra-national normative practices now increasingly affect individuals, influences domestic regulatory practices and complements domestic law. Such a ‘regulatory’ layer of international law is characterised as a pluralist architecture, in the sense that it consists of normative statements adopted by multiple actors, both national and international, public and private, all of which function in relative autonomy of each other, without an overarching rule-based system of interaction. From the standing point of domestic law, a pluralistic body of norms and sources poses an important challenge to make sense of these external normative pressures. The asymmetry in the architecture of two sets of norms (domestic and global) that are domestically relevant has an impact on the professional experience of the international lawyer, who is acting in a domestic setting that is, nevertheless, immersed in a global regulatory context. The resulting professional experience is one in which the international lawyer must navigate, at the same time, the hierarchical project of domestic law and the pluralistic structure of international law.