Finding The Most Highly Qualified Publicists': Lessons From The International Court of Justice
Finding The Most Highly Qualified Publicists': Lessons From The International Court of Justice
2
© The Author(s), 2019. Published by Oxford University Press on behalf of EJIL Ltd.
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Abstract
Article 38(1) of the Statute of the International Court of Justice (ICJ Statute) instructs the
Court to ‘apply … the teachings of the most highly qualified publicists’. This raises the ques-
tion of how to decide who these ‘publicists’ are and how to rank them. This article suggests
four factors that the Court’s judges apparently use when assessing the weight of ‘teachings’:
the quality of the work, the expertise and official positions of the author(s) and agreement
between multiple authors. Judges may invoke these factors because it can make their opin-
ions more authoritative and saves time, and in order to conform with Article 38 of the ICJ
Statute. Counting the authors and teachings that judges have highlighted as having high
quality, being experts and holding prestigious official positions provides a list that is different
from the lists of writers who are cited most often and by the most judges. While this gives
a rough idea of who ‘the most highly qualified publicists’ may be, it also shows that a final,
conclusive ranking cannot be given.
1 Introduction
This article explores the ‘factors’ that determine the weight of teachings in inter-
national law. ‘Teachings’, which are mentioned in Article 38(1)(d) of the Statute of
the International Court of Justice (ICJ Statute),1 are here defined as ‘books and art-
icles, purporting to answer legal questions, being used when ascertaining the content
of international law’.2 Works produced by the International Law Commission (ILC)
* Associate Professor, University of Tromsø, Norway. Email: [email protected]. This article is based
on a chapter from my doctoral dissertation at the University of Oslo, which is titled: ‘The Application of
Teachings by the International Court of Justice’.
1
Statute of the International Court of Justice 1945, 1946 UKTS 67.
2
Helmersen, ‘The Use of Scholarship by the WTO Appellate Body’, 7 Goettingen Journal of International Law
(2016) 309, at 314.
are excluded because of the significant role of states in their production. The article
uses the practice of the International Court of Justice (ICJ) as a case study.3 The ICJ is
the most authoritative international court and has a publicly available record of case
3
Between Admission of a State to the United Nations (Charter, Art. 4), Advisory Opinion, 28 May 1948, ICJ
Reports (1948) 57; Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and
to Nuclear Disarmament (Marshall Islands v. United Kingdom), Preliminary Objections, Judgment, 5 October
2016, ICJ Reports (2016) 833.
4
E.g., D.J. Harris, Cases and Materials on International Law (8th edn, 2015), at 42.
5
E.g., R. Jennings and A. Watts (eds), Oppenheim’s International Law (9th edn, 1992), vol. 1, at 42–43.
6
Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), Judgment, 11
September 1992, ICJ Reports (1992) 351, at 592, 594.
7
Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa)
Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 21 June 1971, ICJ Reports
(1971) 16, at 48.
8
Kasikili/Sedudu Island (Botswana/Namibia), Judgment, 13 December 1999, ICJ Report (1999) 1045,
at 1062.
9
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9
July 2004, ICJ Reports (2004) 136, at 176 (the reference at 175 is excluded because the work was appar-
ently produced by governments rather than the International Committee of the Red Cross).
10
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits,
Judgment, 26 November 1984, ICJ Reports (1986) 14, at 124–125.
11
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, 26 February 2007, ICJ Reports (2007) 43, at 125.
12
Nottebohm Case (Second Phase), Judgment, 6 April 1955, ICJ Reports (1955) 4, at 22–23; Legality of
the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, ICJ Reports (1996) 226, at 259;
North Sea Continental Shelf, Judgment, 20 February 1969, ICJ Reports (1969) 3, at 35; LaGrand (Germany
v. United States of America), Judgment, 27 June 2001, ICJ Reports (2001) 466, at 501, 508.
13
J. Crawford, Brownlie’s Principles of Public International Law (8th edn, 2012), at 43.
14
D.W. Greig, International Law (2nd edn, 1976), at 48; similarly S. Rosenne, The Perplexities of Modern
International Law (2004), at 44.
Finding ‘the Most Highly Qualified Publicists’ 511
that, as sources of law, individual opinions are generally seen as being less important
than majority opinions.15
Article 38(1) of the ICJ Statute mentions ‘the teachings of the most highly qualified
15
E.g., Virally, ‘The Sources of International Law’, in M. Sørensen (ed.), Manual of Public International Law
(1968) 116, at 153–154.
16
E.g., Fitzmaurice, ‘Some Problems Regarding the Formal Sources of International Law’, in M. Koskenniemi
(ed.), Sources of International Law (2000) 57, at 77.
17
E.g., G.M. Danilenko, Law-Making in the International Community (1993), at 33–36.
18
C. Parry, The Sources and Evidence of International Law (1965), at 108.
19
E.g., T. Hillier, Sourcebook on Public International Law (1998), at 94.
20
E.g., R.M.M. Wallace and O. Martin-Ortega, International Law (7th edn, 2013), at 30.
512 EJIL 30 (2019), 509–535
qualified, where the more highly qualified are assigned more weight.21 That is what
ICJ judges seem to do, by citing some writers more than others (as discussed in this
part) and by emphasizing various ‘factors’ that seem to affect the weight of teach-
21
Zarbiyev, ‘Saying Credibly What the Law Is: On Marks of Authority in International Law’, 9 Journal of
International Dispute Settlement (2018) 291, at 309 generally notes that ‘authority … is something of
which one can have more or less’.
22
Permanent Court of International Justice, Advisory Committee of Jurists, Procès-Verbaux of the
Proceedings of the Committee June 16th–July 24th 1920 with Annexes (1920), at 336.
23
International Law Commission (ILC), Report of the International Law Commission Sixty-Eight Session (2
May–10 June and 4 July–12 August 2016), Doc. A/71/10 (2016), at 111.
24
E.g., American Law Institute, Restatement of the Law of Foreign Relations of the United States (1987), vol. 1, at 38.
25
Jennings, Watts, Oppenheim, Jiménez de Aréchaga and Brownlie are also among the most-cited writers
in the World Trade Organization’s Appellate Body. Helmersen, supra note 2, at 333–334.
26
Antônio Augusto Cançado Trindade has been cited 297 times but only by himself.
27
Sivakumaran, ‘The Influence of Teachings of Publicists on the Development of International Law’, 66
International and Comparative Law Quarterly (2017) 1, at 3.
Finding ‘the Most Highly Qualified Publicists’ 513
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3 The Factors
A Introduction
This section identifies the factors that seem to influence the weight of teachings among
ICJ judges.28 The factors are mainly based on apparent attempts by judges to ‘justify’
references to teachings by highlighting the quality of a work, the expertise of a writer,
the official authority of a writer and agreement among multiple writers. Some judges
do not ‘justify’ any of their references to teachings. Those who make such justifications
do not justify all of their references. There are examples of opinions where some ref-
erences are justified, while others are not, and even footnotes where only some refer-
ences are justified. One reason for this is that a single justification may apply to multiple
references. For example, in Bosnia Genocide, Judge ad hoc Milenko Kreća referred to
28
This terminology is found, for example, in S. Hall, Principles of International Law (2nd edn, 2006), at 59.
514 EJIL 30 (2019), 509–535
Top 10 %
teachings by William A. Schabas multiple times, but called Schabas ‘the learned au-
thor’ only once.29 A judge could also justify one reference because the judge perceives
the work in question to have less weight than other works that are cited (without being
justified). For example, it is interesting that Judge ad hoc Syed Pirzada in Aerial Incident
of 10 August 1999 (Pakistan v. India) justified his reference to R. P. Anand by calling him
a ‘well-known Indian writer’ but did not justify references to Ian Brownlie or Shabtai
Rosenne.30 The latter two are among the Court’s most-cited writers, and Judge ad hoc
Pirzada may have felt that it was necessary to justify including Anand in the same con-
text. On the other hand, a judge may justify one reference to show that it has a greater
significance than other references. An example could be Judge ad hoc Christine Van
den Wyngaert in the Arrest Warrant case, who referred to one work as ‘very thorough’
and the rest as ‘other’.31 In any of these cases, the implication seems to be that different
teachings have different weight.
It is possible to compare how often each type of justification is made. This gives
a rough indication of the relative importance of each factor. The quality of works
and the expertise of writers are the most common types of justifications, with 198
mentions of quality and 190 of expertise. The official positions of writers were men-
tioned 107 times, while agreement between writers was mentioned 32 times. The
ILC, in Customary International Law Conclusions, argues that ‘it is the quality of the
particular writing that matters rather than the reputation of the author’,32 and
Sandesh Sivakumaran seems to agree.33 While the purely quantitative analysis in this
29
Application of the Convention on Genocide, supra note 11, at 542, Separate Opinion of Judge ad hoc Kreća.
30
Aerial Incident of 10 August 1999 (Pakistan v. India), Jurisdiction of the Court, Judgment, 21 June 2000, ICJ
Reports (2000) 12, at 95–96, Dissenting Opinion of Judge ad hoc Pirzada.
31
Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, 14 February
2002, ICJ Reports (2002) 3, at 166, Dissenting Opinion of Judge ad hoc Van den Wyngaert.
32
ILC, supra note 23, at 111.
33
Sivakumaran, supra note 27, at 12.
Finding ‘the Most Highly Qualified Publicists’ 515
paragraph suggests that expertise and quality are equally important in practice, this
finding does not finally settle the matter. It is not possible to know precisely how im-
portant each judge considers the two factors (to the extent that they even have a clear
B Expertise
This section argues that judges give more weight to writers whom they consider ex-
perts. This is indicated by judges’ practice of justifying references to teachings by em-
phasizing the expertise of the writer.34 For example, judges have used terms that reflect
the general expertise of writers, calling them ‘expert’,35 ‘learned’,36 ‘distinguished’37
and a variety of similar terms. Judges have also used terms that apparently focus on
other actors’ perceptions of the writers, such as ‘well-known’,38 ‘famous’,39 ‘influen-
tial’40 and other such terms. Some statements highlight the consistent quality of an
author’s works, such as ‘characteristically thoughtful’,41 ‘characteristically thor-
ough’42 and ‘characteristic cogency’,43 which is another way of saying that the author
is an expert. Yet another writer was praised for having ‘so often and so brilliantly con-
tributed to the cause of international law and justice’.44 Some statements draw more
historical lines. Judge Antônio Trindade often discusses the ‘founding fathers’ of inter-
national law.45 Among them are ‘Grotius himself ’,46 as referred to by Judge Christopher
Weeramantry. Weeramantry has also (and similarly) referred to ‘fountainheads of
34
Ibid., at 11.
35
E.g., Request for Interpretation of the Judgment of 15 June 1962 in the Case Concerning the Temple of Preah
Vihear (Cambodia v. Thailand) (Cambodia v. Thailand), Judgment, 11 November 2013, ICJ Reports (2013)
281, at 339–340, Separate Opinion of Judge Cançado Trindade.
36
E.g., Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia
v. Serbia), Judgment, 3 February 2015, ICJ Reports (2015) 3, at 169, Separate Opinion of Judge Owada.
37
E.g., Fisheries case, Judgment, 18 December 1951, ICJ Reports (1951) 116, at 182, Dissenting Opinion of
Sir Arnold McNair.
38
E.g., North Sea Continental Shelf, supra note 12, at 157, Dissenting Opinion of Vice-President Koretsky.
39
Corfu Channel Case, Judgment, 9 April 1949, ICJ Reports (1949) 4, at 72, Dissenting Opinion by Judge Krylov.
40
Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional
Measures, Order, 13 September 1993, ICJ Reports (1993) 325, at 378, Separate Opinion of Vice-President
Weeramantry.
41
Legal Consequences of South Africa in Namibia, supra note 7, at 168, Separate Opinion of Judge Dillard.
42
Fisheries Jurisdiction (United Kingdom v. Iceland), Merits, Judgment, 25 July 1974, ICJ Reports (1974) 3, at
68, Separate Opinion of Judge Dillard.
43
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Provisional
Measures, Order, 10 May 1984, ICJ Reports (1984) 169, at 197–198, Dissenting Opinion of Judge Schwebel.
44
South West Africa, Second Phase, Judgment, 18 July 1966, ICJ Reports (1966) 6, at 325–326, Dissenting
Opinion of Judge Jessup (also cited by Military and Paramilitary Activities, supra note 10, at 267–268,
Dissenting Opinion of Judge Schwebel).
45
E.g. Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo,
Advisory Opinion, 22 July 2010, ICJ Reports (2010) 403, at 552–553, Separate Opinion of Judge
Cançado Trindade.
46
Land and Maritime Boundary between Cameroon and Nigeria, Preliminary Objections, Judgment, 11 June
1998, ICJ Reports (1998) 275, at 372–373, Dissenting Opinion of Vice-President Weeramantry.
516 EJIL 30 (2019), 509–535
47
Maritime Delimitation in the Area between Greenland and Jan Mayen, Judgment, 14 June 1993, ICJ Reports
(1993) 38, at 239, Separate Opinion of Judge Weeramantry.
48
E.g. Case Concerning the Application of the Convention of 1902 Governing the Guardianship of Infants
(Netherlands v. Sweden), Judgment, 28 November 1958, ICJ Reports (1958) 55, at 96, Separate Opinion
of Judge Sir Hersch Lauterpacht.
49
E.g. Arrest Warrant of 11 April 2000, supra note 31, at 72, Joint Separate Opinion of Judges Higgins,
Kooijmans and Buergenthal.
50
Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia
v. Russian Federation), Preliminary Objections, Judgment, 1 April 2011, ICJ Reports (2011) 70, at 306,
Dissenting Opinion of Judge Cançado Trindade.
51
Sovereignty over Pulau Ligitan und Pulau Sipadan (Indonesia/Malaysia), Application for Permission to Intervene,
Judgment, 23 October 2001, ICJ Reports (2001) 575, at 647, Separate Opinion of Judge ad hoc Weeramantry.
52
Application of the Convention on Genocide, supra note 11, at 347, Separate Opinion of Judge Tomka.
53
Nuclear Tests (Australia v. France), Judgment, 20 December 1974, ICJ Reports (1974) 253, at 381,
Dissenting Opinion of Judge de Castro.
54
Colombian-Peruvian Asylum Case, Judgment, 20 November 1950, ICJ Reports (1950) 266, at 344,
Dissenting Opinion by Judge Azevedo.
55
Case Concerning the Guardianship of Infants, supra note 48, at 84, Separate Opinion of Judge Sir Hersch
Lauterpacht.
56
Ibid.
57
E.g. Legality of the Threat or Use of Nuclear Weapons, supra note 12, at 500 and 518–519, Dissenting
Opinion of Judge Weeramantry.
58
Legal Consequences of South Africa in Namibia, supra note 7, at 162–163, Separate Opinion of Judge Dillard.
59
Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment, 3 February 2012, ICJ
Reports (2012) 99, at 194, 197, Dissenting Opinion of Judge Cançado Trindade.
60
Legality of the Threat or Use of Nuclear Weapons, supra note 12, at 508, Dissenting Opinion of Judge
Weeramantry.
Finding ‘the Most Highly Qualified Publicists’ 517
may be that even though the IDI as an institution has a certain authority, the expertise
of the specific individuals who are at any time involved in its work affects the weight
of that work. The assumption that the weight of teachings varies by the writer’s ex-
C Quality
Judges justify some citations of teachings by saying something about the quality of
the specific work. Various terms have been used. Some terms relate to qualities of the
text itself, such as ‘clearly’,64 ‘objective’,65 ‘comprehensive’66 and various others. Other
terms focus specifically on the judges’ use of the teachings, such as ‘useful’,67 ‘valu-
able’,68 ‘helpful’69 and the like. Yet other terms are about other actors’ perceptions of
the teachings. These include, among others, ‘generally accepted’,70 ‘celebrated’71 and
‘influential’.72 The terms ‘standard’,73 ‘classic’74 and ‘leading’75 may also be taken as
attributes that are shaped by the perceptions of other actors; what is a, or the, standard,
leading or classic work in a field depends on the views of the actors in that field. The ad-
jective ‘well’ is also used in various contexts, as in ‘well described’ and the like.76
61
H. Lauterpacht, The Development of International Law by the International Court (1958), at 24;
Oppenheim, ‘The Science of International Law: Its Task and Method’, 2 American Journal of
International Law (AJIL) (1908) 313, at 345; K. Wolfke, Custom in Present International Law (2nd
edn, 1993), at 156.
62
ILC, supra note 23, at 111.
63
D’Aspremont, ‘Wording in International Law’, 25 Leiden Journal of International Law (LJIL) (2012) 575,
at 582.
64
E.g., Barcelona Traction, Light and Power Company, Limited, Judgment, 5 February 1970, ICJ Reports
(1970) 3, at 192, Separate Opinion of Judge Jessup.
65
Fisheries Jurisdiction, supra note 42, at 80, Separate Opinion of Judge de Castro.
66
E.g., North Sea Continental Shelf, supra note 12, at 242, Dissenting Opinion of Judge Sorensen.
67
E.g., Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, 19 November 2012, ICJ Reports
(2012) 624, at 743, Declaration of Judge Keith.
68
Application for Revision of the Judgment of 11 July 1996 in the Case Concerning Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections,
Judgment, 3 February 2003, ICJ Reports (2003) 7, at 70, Separate Opinion of Judge ad hoc Mahiou.
69
Aerial Incident of 3 July 1988 (Islamic Republic of Iran v. United States of America), Order, 13 December
1989, ICJ Reports (1989) 132, at 157, Separate Opinion by Judge Shahabuddeen.
70
Aegean Sea Continental Shelf, Judgment, 19 December 1978, ICJ Reports (1978) 3, at 69, Dissenting
Opinion of Judge de Castro.
71
E.g., Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion, 20
July 1962, ICJ Reports (1962) 151, at 229, Dissenting Opinion of President Winiarski.
72
E.g., Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, 24 February 1982, ICJ Reports (1982)
18, at 199, Dissenting Opinion of Judge Oda.
73
E.g., Barcelona Traction, Light and Power Company, Limited, supra note 64, at 85, Separate Opinion of Judge
Sir Gerald Fitzmaurice.
74
E.g., Military and Paramilitary Activities in and against Nicaragua, supra note 10, at 546, Separate Opinion
of Judge Sir Robert Jennings.
75
E.g., Land, Island and Maritime Frontier Dispute, supra note 6, at 737, Dissenting Opinion of Judge Oda.
76
E.g., Continental Shelf, supra note 72, at 97, Separate Opinion of Judge Ago.
518 EJIL 30 (2019), 509–535
The IDI has been said to have been ‘preside[d] [over] with such distinction’,77 which
presumably leads to a high-quality result. One writer’s observations were ‘useful to
note’.78 Another writer was part of a ‘predominant legal theory’,79 while yet anoth-
77
Legality of the Threat or Use of Nuclear Weapons, supra note 12, at 518–519, Dissenting Opinion of Judge
Weeramantry.
78
Ibid., at 543.
79
Legality of the Threat or Use of Nuclear Weapons, supra note 12, at 322–323, Dissenting Opinion of Vice-
President Schwebel.
80
Arbitral Award of 31 July 1989, Judgment, 12 November 1991, ICJ Reports (1991) 53, at 163, Dissenting
Opinion of Judge Weeramantry.
81
Land and Maritime Boundary between Cameroon and Nigeria, supra note 46, at 372–373, Dissenting Opinion
of Vice-President Weeramantry.
82
Military and Paramilitary Activities in and against Nicaragua, supra note 10, at 285–286, Dissenting Opinion
of Judge Schwebel.
83
Anglo-Iranian Oil Co. Case (jurisdiction), Judgment, 22 July 1952, ICJ Reports (1952) 93, at 167, Dissenting
Opinion of Judge Levi Carneiro.
84
Maritime Delimitation in the Area between Greenland and Jan Mayen, supra note 47, at 287, Separate Opinion
of Judge Ajibola.
85
South-West Africa–Voting Procedure, Advisory Opinion, 7 June 1955, ICJ Reports (1955) 67, at 104,
Separate Opinion of Judge Lauterpacht.
86
Barcelona Traction, Light and Power Company, Limited, supra note 64, at 183, Separate Opinion of Judge Jessup.
87
Case Concerning the Guardianship of Infants, supra note 48, at 124–125, Separate Opinion of Sir Percy
Spender.
88
Colombian-Peruvian Asylum Case, supra note 54, at 364, Dissenting Opinion by M. Caicedo Castilla.
89
Application of the Convention on Genocide, supra note 36, at 495, Separate Opinion of Judge ad hoc Kreća.
90
Arbitral Award of 31 July 1989, supra note 80, at 119, Separate Opinion of Judge Shahabuddeen.
91
Military and Paramilitary Activities in and against Nicaragua, supra note 10, at 388, Dissenting Opinion of
Judge Schwebel.
92
Arrest Warrant of 11 April 2000, supra note 31, at 72, Joint Separate Opinion of Judges Higgins, Kooijmans
and Buergenthal.
Finding ‘the Most Highly Qualified Publicists’ 519
93
Land, Island and Maritime Frontier Dispute, supra note 6, at 748, Dissenting Opinion of Judge Oda.
94
E.g., Oppenheim, supra note 61, at 345.
95
ILC, supra note 23, at 111.
96
S. Rosenne, Practice and Methods of International Law (1984), at 121.
97
Sivakumaran, supra note 27, at 10.
98
Hall, supra note 28, at 59–60.
99
Oraison, ‘L’Influence des Forces Doctrinales Académiques sur les Prononcés de la C.P.J.I. et de la C.I.J’, 32
Revue Belge de Droit International (1999) 205, at 228.
100
E.g., Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the
Congo v. Rwanda), Provisional Measures, Order, 10 July 2002, ICJ Reports (2002) 219, at 262, Declaration
by Judge Elaraby.
101
E.g., D’Amato, ‘What Does It Mean to Be an Internationalist?’, 10 Michigan Journal of International Law
(1989) 102, at 104. However, Jennings, ‘What Is International Law and How Do We Know It When We
See It’, in M. Koskenniemi (ed.), Sources of International Law (2000) 27, at 46–47, questions whether
‘such a distinction can readily be made’.
520 EJIL 30 (2019), 509–535
also be found in the ILC’s work on customary international law.102 They are also re-
flected in national judicial decisions such as the US Supreme Court’s Paquete Habana
decision103 and West Rand Central Gold Mining Co. v. The King from the English High
D Official Positions
According to the ICJ opinions that are studied here, the official position of a writer
seems to affect the weight of their teachings. Many of the most-cited writers in the ICJ
have themselves been ICJ judges or have held other official positions – for example, as
government legal advisers or counsel. For example, among the 10 most-cited writers
mentioned in Section 2 of this article, five were judges of the PCIJ and ICJ (Hersch
Lauterpacht, Gerald Fitzmaurice, Manley Hudson, Robert Jennings and Charles de
Visscher). Arthur Watts was a government legal adviser, and Rosenne was an ambas-
sador. This is an indication that the official position of the writer affects the weight
accorded to their teachings.
Judges, moreover, have justified their references to teachings by mentioning some
official position held by the author.106 In ICJ opinions, there are many references
to a writer being either a ‘Judge’107 or ‘President’108 of the ICJ itself. Having been a
‘Judge’109 or ‘President’110 of the PCIJ has also been mentioned, as has being a member
of ‘both courts’.111 A ‘President of the Arbitral Tribunal of Upper Silesia’ has been
cited,112 and one writer was described generally as an ‘international judge’.113 Some
102
ILC, Third Report on Identification of Customary International Law by Michael Wood, Special
Rapporteur, Doc. A/CN.4/682 (2015), at 45; ILC, supra note 23, at 111.
103
The Paquete Habana, (1900) 175 US 677, at 700 (US SC).
104
West Rand Central Gold Mining Co. v. The King, [1905] 2 KB 391, at 402 (HC).
105
D’Aspremont, supra note 63, at 582.
106
The use of ‘Judge’ or ‘President’ (or, for that matter, ‘Professor’) as part of the name of a writer is not
counted here. Such usage is excluded on the assumption that this is a formality similar to the use of ‘Mr.’
or ‘Ms.’, and more about courtesy and correctness than about praising the person referred to. However,
Sivakumaran, supra note 27, at 11, includes judges referring to titles such as Dr. and Professor in his
discussion.
107
E.g., North Sea Continental Shelf, supra note 12, at 160, at Dissenting Opinion of Vice-President Koretsky.
108
E.g., Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, 20 April 2010, ICJ Reports (2010)
14, at 114, Joint Dissenting Opinion Judges Al-Khasawneh and Simma.
109
E.g., Admission of a State to the UN, supra note 3, at 109, Dissenting Opinion by M. Krylov.
110
E.g., Corfu Channel Case, supra note 39, at 53, at Dissenting Opinion by Judge Winiarski.
111
Oil Platforms (Islamic Republic of Iran v. United States of America), Counter-Claim, Order, 10 March 1998,
ICJ Reports (1998) 190, at 229, Dissenting Opinion by Judge ad hoc Rigaux.
112
South West Africa, supra note 44, at 434–435, Dissenting Opinion of Judge Jessup.
113
Obligations Concerning Nuclear Disarmament, supra note 3, at 897, Separate Opinion of Judge Tomka.
Finding ‘the Most Highly Qualified Publicists’ 521
opinions have referred to judges ‘writing extra-judicially’,114 ‘out of court’115 and ‘in
another context’116 (than as a judge). A plausible interpretation of this is the fact that
the writer also being a judge gave the teachings added weight.
114
E.g., Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, 4 December 1998, ICJ
Reports (1998) 432, at 504, Dissenting Opinion of Vice-President Weeramantry.
115
Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Application to Intervene, Order, 28
February 1990, ICJ Reports (1990) 3, at 21, Dissenting Opinion of Judge Shahabuddeen.
116
Legality of the Threat or Use of Nuclear Weapons, supra note 12, at 563, Dissenting Opinion of Judge
Koroma.
117
Fisheries Jurisdiction, supra note 114, at 656, Dissenting Opinion of Judge Torres-Bernárdez.
118
Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Preliminary Objection, Judgment, 24
September 2015, ICJ Reports (2015) 592, at 6, Separate Opinion of Judge Cançado Trindade.
119
Judgment No. 2867 of the Administrative Tribunal of the International Labour Organization upon a Complaint
Filed against the International Fund for Agricultural Development, Advisory Opinion, 1 February 2012, ICJ
Reports (2012) 10, at 80, Separate Opinion of Judge Cançado Trindade.
120
Aerial Incident of 10 August 1999, supra note 30, at 105.
121
E.g., Continental Shelf (Libyan Arab Jamahiriya/Malta), Application to Intervene, Judgment, 21 March 1984,
ICJ Reports (1984) 3, at 141, Dissenting Opinion of Judge Schwebel.
122
Military and Paramilitary Activities in and against Nicaragua, supra note 10, at 394, Dissenting Opinion of
Judge Schwebel.
522 EJIL 30 (2019), 509–535
shorter than that of a judge, there are more former judges than former presidents of
the ICJ. The discrepancy in justifications may be caused by the assumption that the
position of president requires more personal competence, gives a greater insight into
123
E.g., Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Declaration of Intervention, Order, 4 October 1984, ICJ Reports (1984) 215, at 236, Dissenting Opinion of
Judge Schwebel.
124
E.g., Jurisdictional Immunities of the State, supra note 59, at 169–170, Separate Opinion of Judge Keith.
125
E.g., Accordance with International Law in Respect of Kosovo, supra note 45, at 464, Declaration of Judge
Tomka, Vice President.
126
E.g., Case Concerning the Aerial Incident of July 27th, 1955 (Israel v. Bulgaria), Preliminary Objections,
Judgment, 26 May 1959, ICJ Reports (1959) 127, at 174, Joint Dissenting Opinion by Judges Sir Hersch
Lauterpacht, Wellington Koo and Sir Percy Spender.
127
Maritime Delimitation in the Area between Greenland and Jan Mayen, supra note 47, at 237, Separate Opinion
of Judge Weeramantry.
128
Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Counter-Claims,
Order, 17 December 1997, ICJ Reports (1997) 243, at 290, Dissenting Opinion of Vice-President
Weeramantry.
129
Legal Consequences of South Africa in Namibia, supra note 7, at 240, Dissenting Opinion of Judge Gerald
Fitzmaurice.
130
Case Concerning the Aerial Incident of July 27th, 1955, supra note 126, at 174, Joint Dissenting Opinion by
Judges Sir Hersch Lauterpacht, Wellington Koo and Sir Percy Spender.
131
Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, 8 July 1996, ICJ
Reports (1996) 66, at 142, Dissenting Opinion of Judge Weeramantry.
Finding ‘the Most Highly Qualified Publicists’ 523
Since this author at the time the cited text was written had yet to participate in the
negotiations, the reference cannot have been motivated by any special insight that
the writer could have gained. Writers having participated in negotiations also says
132
Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20
December 1974 in the Nuclear Tests (New Zealand v. France) Case, Order, 22 September 1995, ICJ Reports
(1995) 288, at 407–408, Dissenting Opinion by Judge ad hoc Sir Geoffrey Palmer.
133
Fisheries Jurisdiction, supra note 42, at 38, Declaration by Judge Ignacio-Pinto.
134
South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment,
21 December 1962, ICJ Report (1962) 319, at 451, Dissenting Opinion of President Winiarski.
135
Military and Paramilitary Activities in and against Nicaragua, supra note 10, at 384, Dissenting Opinion of
Judge Schwebel.
136
Application of the Convention on Genocide, supra note 11, at 320, Separate Opinion of Judge Tomka.
137
Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, 6 November 2003, ICJ
Reports (2003) 161, at 387–388, Separate Opinion of Judge ad hoc Rigaux.
138
Gabčikovo-Nagymaros Project (Hungary/Slovakia), Judgment, 25 September 1997, ICJ Reports (1997) 7,
at 91, Separate Opinion of Vice-President Weeramantry.
139
Pulp Mills on the River Uruguay, supra note 108, at 114, Joint Dissenting Opinion Judges Al-Khasawneh
and Simma.
140
North Sea Continental Shelf, supra note 12, at 157, Dissenting Opinion of Vice-President Koretsky.
141
Request for an Examination in the Nuclear Tests, supra note 132, at 386, Dissenting Opinion by Judge ad hoc
Sir Geoffrey Palmer.
524 EJIL 30 (2019), 509–535
142
Colombian-Peruvian Asylum Case, supra note 54, at 365, Dissenting Opinion by M. Caicedo Castilla.
143
Helmersen, supra note 2, at 334.
144
Hall, supra note 28, at 60.
145
A. Clapham, Brierly’s Law of Nations: An Introduction to the Role of International Law in International
Relations (7th edn, 2012), at 67.
146
Wolfke, supra note 61, at 156.
147
Waibel, ‘Interpretive Communities in International Law’, in A. Bianchi, D. Peat and M. Windsor (eds),
Interpretation in International Law (2015) 147, at 156.
148
Pellet, ‘Article 38’, in A. Zimmermann and others (eds), The Statute of the International Court of Justice:
A Commentary (2nd edn, 2012) 731, at 869.
149
E.g., Wolfke, supra note 61, at 156.
Finding ‘the Most Highly Qualified Publicists’ 525
150
E.g., Application of the Convention on Genocide, supra note 11, at 419, Dissenting Opinion of Judge ad hoc
Mahiou.
151
E.g., Aegean Sea Continental Shelf, supra note 70, at 69, Dissenting Opinion of Judge de Castro.
152
E.g., Barcelona Traction, Light and Power Company, supra note 64, at 144, Separate Opinion of Judge Tanaka.
153
Arrest Warrant of 11 April 2000, supra note 31, at 156, Dissenting Opinion of Judge ad hoc Van den Wyngaert.
154
Ibid., at 157–158.
155
Application of the Convention on Genocide, supra note 11, at 404, Dissenting Opinion of Judge ad hoc Mahiou.
156
Application of the Convention on Genocide, supra note 36, at 495, Separate Opinion of Judge ad hoc Kreća.
157
E.g., Case Concerning the Arbitral Award made by the King of Spain on 23 December 1906, Judgment, 18
November 1960, ICJ Reports (1960) 192, at 224, Dissenting Opinion of Judge Urrutia Holguin.
158
Legality of the Threat or Use of Nuclear Weapons, supra note 12, at 508, Dissenting Opinion of Judge
Weeramantry.
159
Judge Tomka, quoted in Amelia Keene (ed.), ‘Outcome Paper for the Seminar on the International Court
of Justice at 70’, 7 Journal of International Dispute Settlement (2016) 238, at 260.
160
South West Africa Cases, supra note 134, at 406, Separate Opinion of Judge Jessup.
526 EJIL 30 (2019), 509–535
above, one of the two references to specific teachings in ICJ majority opinions was
to ‘the successive editors of Oppenheim’s International Law’. The significance of this
may have been not only that multiple editors agreed but also that individual editors
161
The ‘Renard’, [1778] 165 All ER 51, at 51–52 (English Court of Admiralty).
162
The Queen v. Keyn [1876] 2 Ex D 63, at 202 (English Court for Crown Cases Reserved).
163
E.g., Lauterpacht, supra note 61, at 24.
164
ILC, supra note 102, at 45.
165
E.g., Virally, supra note 15, at 153.
166
ILC, supra note 23, at 112.
167
Hall, supra note 28, at 60.
168
J.L. Brierly, The Law of Nations: An Introduction to the International Law of Peace, edited by H. Waldock (6th
edn, 1963), at 66.
169
Lauterpacht, supra note 61, at 24 (emphasis added).
Finding ‘the Most Highly Qualified Publicists’ 527
consensus about what constitutes ‘quality’ in writings about international law, about
who the greatest ‘experts’ on international law are and about which institutions are
the most authoritative.170 However, the process itself and its results are rarely expli-
B Increased Authority
Citing an authoritative work may make a judicial opinion look more authoritative.
Lawyers aspire to have their work accepted by others. This holds true not only of aca-
demics who publish research and of lawyers pleading before judges but also of judges
themselves.173 Therefore, one reason why judges cite teachings seems to be that they
think it will improve how they are perceived by other actors.174 Teachings can therefore
be cited ‘for strategic reasons’.175 It is possible to distinguish between a ‘defensive’176
and an ‘offensive’ aspect of this ‘strategic’ function. The ‘defensive’ function is about
preventing criticism of an opinion, while the ‘offensive’ is about convincing others of
its cogency. References to teachings can ‘enhance … credibility’, ‘create the impression
of being thoroughly versed in the relevant literature’ and associate the judge ‘with
170
In the words of Zarbiyev, supra note 21, at 313, ‘[a]uthority … is a socially sanctioned deference
entitlement’.
171
N. Duxbury, Judges and Jurists: An Essay on Influence (2001), at 11, referring to Merton, ‘The Matthew
Effect in Science’, 159 Science (1968) 56, at 58.
172
E.g., Sivakumaran, supra note 27, at 28.
173
Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, 16 March
2001, ICJ Reports (2001) 40, at 151, Joint Dissenting Opinion of Judges Bedjaoui, Ranjeva and Koroma.
174
Lupu and Voeten, ‘Precedent in International Courts: A Network Analysis of Case Citations by the
European Court of Human Rights’, 42 British Journal of Political Science (2011) 413, at 413 (about judges
citing judicial decisions).
175
Schwartz and Petherbridge, ‘The Use of Legal Scholarship by the Federal Courts of Appeals: An Empirical
Study’, 96 Cornell Law Review (2011) 1345, at 1354.
176
Cole, ‘Non-Binding Documents and Literature’, in T. Gazzini and E. de Brabandere (eds), International
Investment Law: The Sources of Rights and Obligations (2012) 289, at 314.
528 EJIL 30 (2019), 509–535
C Saving Time
On a more practical level, citing authoritative writers can save time for judges. This is
in part because authoritative writers are, at least presumably, more likely to be correct
about the law. Joseph Raz argues that ‘[a]uthoritative utterances can be called “con-
tent‐independent” reasons’, meaning that they are ‘not conditional on … agreement
on the merits’.183 Gleider Hernández uses similar terminology and holds that ‘con-
tent-independent’ authority ‘carries weight due to the probability of having merit’.184
Applied to judges citing teachings, this means that judges can trust the views of au-
thoritative writers and spend less time on independent research or prolonged delib-
eration. Similarly, Cole points out that consulting teachings ‘allows [judges] to draw
from expertise it might not itself possess’ and ‘can … increase the likelihood that [their]
understanding of international law is correct’.185 Another way to phrase this is that
teachings ‘relieve the judge’186 since they allow a judge ‘to invoke the authoritative
writing and proceed without further analysis or argument’.187 While this time-saving
function of teachings can be significant, it also carries risks. Teachings are ‘at one re-
move’ from ‘primary sources’,188 and reliance on them may discourage independent
consultation of the sources that are cited. Teachings, for example, may be used ‘as
183
J. Raz, The Morality of Freedom (1986), at 35, 40.
184
G.I. Hernández, The International Court of Justice and the Judicial Function (2014), at 171.
185
Cole, supra note 176, at 301, 303.
186
Wolfke, supra note 61, at 156.
187
Cole, supra note 176, at 308–309.
188
Mendelson, ‘The International Court of Justice and the Sources of International Law’, in V. Lowe and
M. Fitzmaurice (eds), Fifty Years of the International Court of Justice: Essays in Honour of Sir Robert Jennings
(1996) 63, at 84.
530 EJIL 30 (2019), 509–535
evidence of the existence and content of custom instead of thoroughly analyzing state
practice’.189
Relying on a writer whose expertise is reputable can undoubtedly save a judge time.
the most authoritative. While the community of international lawyers has developed
certain shared guidelines, as discussed in Section 4, individual lawyers and judges are to
some extent free to form their own views. Thus, while the factors are part of the Court’s
7 Conclusion
This article has argued that ICJ judges consider the following factors when assessing
the weight of teachings: the quality of a work; the expertise of a writer; the official
positions of a writer; and whether multiple writers agree. It seems that the process by
Peil, ‘Scholarly Writings as a Source of Law: A Survey of the Use of Doctrine by the International Court
190
of Justice’, 1 Cambridge Journal of International and Comparative Law (2012) 136, at 160.
532 EJIL 30 (2019), 509–535
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which the weight of teachings is determined is collective, informal and largely tacit.
Judges’ incentives for distinguishing between teachings and citing the ones with more
weight probably include a desire to make their opinions authoritative and to save time.
Compliance with the Court’s legal framework may also play a role, but this frame-
work leaves judges significant discretion. Determining exactly who ‘the most highly
qualified publicists’ are is difficult, including because counting citations and counting
citations with ‘justifications’ yield different results and because the results may vary
between fields of international law.
This article has explored one aspect of how teachings are used by one Court; many
research questions remain – concerning, for example, other courts and tribunals,
Finding ‘the Most Highly Qualified Publicists’ 533
other sources and subsidiary means that courts and tribunals apply, all of the other
functions that teachings have in the international legal system and whether current
practices are normatively defensible. The methodology used in this article could pro-
Note: The numbers exclude self-citations. Numbers and names in parenthesis are included in order to show where
certain writers would rank if self-citations were included.