In spite of its deficiencies (for example, it has nothing to say about international soft law or about unilateral acts), Article 38(1) of the Statute of the International Court of Justice is accepted as the classic statement of the sources of public international law. Two sources are not true sources at all, but are described as “subsidiary means for the determination of rules of law.” These are judicial decisions and “the teachings of the most highly qualified publicists of the various nations.” “Subsidiary means” is misleading. The French version of the Statute says “moyen auxiliaire”, which comes closer to reality. Today, international judicial and quasi-judicial fora have proliferated. It is simply an old-fashioned aversion to case law as a source of law that prevents their judicial decisions from being treated as true sources of international law. In the case of the teachings of the most highly qualified publicists the distinction makes more sense. A writer on international law does not have formal lawmaking authority. Nevertheless, writers on international law can be very influential. Their work can affect the course of development of norms in international law.
This raises the question of who are the most highly qualified publicists. The question gains salience in the context of the Jessup International Moot Court Competition. Participants need to know what kind of secondary authority can legitimately be cited before the International Court of Justice. Two recent articles throw a lot of light on the question: The Influence of Teachings of Publicists on the Development of International Law by Sandesh Sivakumaran, a professor at the University of Nottingham, published in 66 International and Comparative Law Quarterly 1 (2017) and Finding “the Most Highly Qualified Publicists”: Lessons from the International Court of Justice by Sondre Torp Helmerson, a professor at the University of Tromsø in Norway, published in 30 European Journal of International Law 509 (2019).
The first article categorizes publicists into state-empowered entities, such as the International Law Commission of the UN, expert groups, such as the International Law Association or the Institut de Droit International, and the broad category described as the “ordinary” publicist. The article goes on to consider what constitutes teachings and arrives at the categories of digests, treatises and textbooks, monographs and edited collections, commentaries, journal articles, and even blog posts. This catholic approach to who is a publicist and what are their teachings is surely correct, as an example makes clear. Let’s say that during your research you encounter a student note in a United States student-edited law review, not necessarily from one of the most prestigious law schools. In your view, the article is clearly on point, well written, and makes sound arguments, perhaps even innovative ones. Should you or may you cite it? In my view the answer is clearly yes. In fact, academic integrity and the avoidance of plagiarism probably demand that you cite the article. Now I concede that something turns on the nature of the audience. If you are drafting a memorial before the International Court of Justice, you may have to think twice.
This is where the second article comes into play. The author carries out a detailed analysis of the ICJ’s citation to publicists. For example, a table in the article is the list of the top ten most-cited writers. At the head of the pack is Shabtai Rosenne, but this is misleading. Rosenne is the author of the leading treatise on the practice and procedure of the Court. It may give us pause that all ten of the most-cited writers are old white men.
The article identifies several factors that go into the determination of what makes a most highly qualified publicist. These are expertise, quality of the work, official position of the author, and agreement among multiple writers. These factors are no surprise. It would be desirable if going forward the ICJ cited from a more diverse range of publicists. After all, the precise wording of article 38(1) is “the most highly qualified publicists of the various nations” (my emphasis). The image for this post is of Hersch Lauterpacht, who came second in the list of the most-cited publicists.