Epistemic Communities in International Adjudication

1 Epistemic community is a descriptive and analytical category used in social sciences as a whole to denote a group of technicians or professionals sharing common constructed sensibilities. The concept has proved very popular across disciplines and has been constantly transposed across fields. As a result, it has not been univocally understood and its contours have continuously taken the particular shapes of the discipline to which it has been transposed.

2 Conceiving international law as an argumentative practice (Koskenniemi, 2007), we will evaluate whether it is possible to assert the existence of an adjudicatory epistemic community, or a collective of legal technicians that regulates this practice. From that perspective, it will be shown that the adjudicatory epistemic community plays a critical role in designing the criteria of validity of arguments and assessing their application by the various actors of the field (d’Aspremont, 2020; Cardenas, 2020). Although epistemic communities as producers of technical knowledge are usually distinct from policy makers, the distinction collapses when applied to international adjudication. This being said, the following is no exercise of transposition of a notion originally developed in other social sciences and hence the following paragraphs come with a certain degree of reinvention.

3 The discussion regarding the existence of an epistemic community in international adjudication will primarily refer to the work of international judges, arbitrators, counsel, and members of registries with a view to evaluating whether practice shows sufficient common sensibilities for them to constitute an epistemic community. The argument starts with some background observations as well as some remarks on the origin of the concept of epistemic community. This will include a snapshot about how the concept has been received in international legal studies (see sec B below). An overview of some of the alternative theorizations of the communities of international lawyers will be provided (sec C). This article, using the dominant understanding of epistemic community, will then turn to the central question of whether judges, arbitrators, counsel, and members of registries can constitute an epistemic community in international adjudication (sec D). Although it will be shown that judges, arbitrators, counsel, and members of registries do not constitute an epistemic community according to the dominant theorization, the concept of epistemic community will be appropriated and reinterpreted to emphasize some of the shared sensibilities of judges, arbitrators, counsel, and members of registries (sec E). The last section offers a few concluding remarks on the exercise of any appropriation and reinterpretation of concepts of social sciences for the study of international law (sec F).