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Introduction
The status of the ‘teachings of the most highly qualified publicists’ (in the terminology the ICJ Statute) in international law is a topic that attracts a small but apparently increasingly amount of academic attention. My new book, ‘The Application of Teachings by the International Court of Justice’, about to be published by Cambridge University Press, shows what status teachings seem to have in the most authoritative international judicial institution. The book uses three methodologies: Positivist legal analysis, an empirical assessment of the Court’s practice, and interviews with judges and staff.
The book has six chapters, in addition to the introduction. One chapter deals with the ICJ Article 38(1), which is found to provide limited guidance on the practical role of teachings. The three following chapters deal with three aspects of the role of teachings in the ICJ: The general role of teachings, variations between different works, and variations between different judges. The final chapter contains concluding reflections.
The General Role of Teachings
A striking pattern is that the ICJ’s majority opinions almost never cite teachings. There are only a very few scattered examples. The book therefore also covers individual opinions, where citations are more copious. That teachings are so rarely cited in majority opinions is in itself an indication that teachings have limited weight in the Court’s decision-making. Moreover, when teachings are cited in individual opinions, they often appear in a footnote or as an afterthought, merely in support of a conclusion primarily reached by other means. This is quite different from how the Court and its judges use judicial decisions and texts from the International Law Commission, which seem to be assigned considerably more weight. A good explanation for this pattern is that the teachings lack official authority.
Variations Between Works
Certain works seem to be assigned more weight than others. ICJ judges cite two writers significantly more often than the rest: Shabtai Rosenne and Hersch Lauterpacht. A striking number of the most-cited writers are UK nationals, most of the rest are nationals of other Western states, and almost all are men.
When judges cite teachings, they often attach a short justification of why they cite a particular work or author. These justifications fall into four broad categories: the quality of the work, the expertise and the official positions of the writers, and multiple writers agreeing with each other. This is also outlined in my article ‘Finding “the Most Highly Qualified Publicists”: Lessons from the International Court of Justice’ (2019) 30 European Journal of International Law 509.
Variations Between Judges
The judges vary in how often and how they cite teachings. Some, around a third of the total, never cite teachings. Four judges are responsible for a disproportionate share of all citations: Cançado Trindade, Weeramantry, Shahabuddeen, and Kreća. These judges also seem to give teachings a more prominent role in their reasoning. Cançado Trindade and Weeramantry have explained their non-traditional legal philosophies in various extrajudicial writings, and consulting a wide range of teachings is in line with those philosophies. Kreća has been in dissent against the Court’s majority in a number of cases, and in some cases may not have had more authoritative sources available to support him.
An empirical assessment shows that judges who are former academics cite teachings more often than do judges who are former diplomats. That is interesting but perhaps not entirely surprising. Former academics are perhaps more used to working with teachings and writing in an academic style. There is no observable difference between judges who are nationals of Western and non-Western states, or between judges from civil law and common law states. The latter is contrary to a conventional wisdom that civil law judges may be more inclined to cite teachings.
Concluding Reflections
One of the concluding reflections concerns how the ICJ’s practice could be adjusted and how such adjustments could be beneficial. I explore the same question in my chapter in Avidan Kent, Nikos Skoutaris, and Jamie Trinidad (eds), The Future of International Courts: Regional, Institutional and Procedural Challenges (Routledge 2019).
One relevant aspect of the ICJ’s practice is that almost all majority opinions and many individual opinions do not cite teachings, while ICJ judges generally seem to use teachings much more often than they cite them. Citing teachings more often would be in line with the general ideal of transparency in judicial decision-making. This must be counterbalanced against a need for brevity and readability, and possibly against the judges’ desire to maintain their authority by not showing a need to rely on teachings.
Another notable pattern is the skewed demographics of the most-cited writers. A more diverse selection would be more in line with the international and universal nature of international law. This must be counterbalanced against the judges’ preference for more familiar teachings or works they consider more authoritative. In any case, much of the overall demographic pattern could simply be a reflection of who actually writes the teachings that are relevant in the cases that come before the ICJ.
The book also compares the ICJ with other courts and tribunals. The Court’s practice in majority opinions is similar to that of the ITLOS, which does not cite teachings at all, as I explain in the article ‘The Application of Teachings by the International Tribunal for the Law of the Sea’ (2020) 11 Journal of International Dispute Settlement 20. The Court’s individual opinions are more varied, but on average they have more citations than the reports of the WTO Appellate Body, which I analyse in the article ‘The Use of Scholarship by the WTO Appellate Body’ (2016) 7 Goettingen Journal of International Law 309. Other writers have examined the practice of international criminal courts and tribunals, which generally cite teachings quite frequently and on average more frequently than the average in individual ICJ opinions