By Sondre Torp Helmersen (author)
The Statute of the International Court of Justice (ICJ) Article 38(1)(d) says that the Court ‘shall apply … the teachings of the most highly qualified publicists’. In my book ‘The Application of Teachings by the International Court of Justice’ I examine how how the Court approaches such ‘teachings’ in practice. The book combines different methodologies: A legal analysis, an empirical examination of the Court’s and the judges’ opinions, interviews with judges and staff, and a normative assessment of how the Court should apply teachings.
The general role of teachings
An overall pattern in the Court’s practice is that the majority opinions almost never cite teachings. The examines also includes individual opinions, where teachings are cited more often. The paucity of citations in the majority opinions suggests that teachings have limited weight. Additionally, in the individuals that do cite teachings, teachings are often used only as a supporting argument. The Court and the judges seem to assign more weight to judicial decisions and works from the International Law Commission. These have an official authority that teachings lack.
Variations between works
Some authors and texts seem to be more authorative in the judges’ eyes. The two most-cited writers in individual ICJ opinions are Shabtai Rosenne and Hersch Lauterpacht. A significant share of the the most popular authors hail from the UK, and many more are from Europe and North America. The vast majority are men.
When citing teachings, judges often try to use justify why they are citing a specific writer. They may refer to the quality of a text, the writer’s expertise, official positions held by th writer (such as ICJ judge), and multiple writers being in agreement. These are factors that seem to influence the perceived weight of specific teachings.
Variations between judges
Some judges use teachings more than others in individual opinions. Around one third of the ICJ’s judges never cite teachings, much the Court’s majority opinions. Other judges cite teachings frequently. The judges that cite teachings most often are Cançado Trindade, Weeramantry, Shahabuddeen, and Kreća. They also seem to assign more weigh to teachings than do most other judges. Both Cançado Trindade and Weeramantry have written extrajudicially about their legal philosophies, and their reliance on teachings fits with these philosophies.
Judges who worked in academia before becoming judges cite teachings more often than the judges who used to be diplomats. This may be because the former academics cited teachings more often in their previous jobs. It is not possible to see a difference between judges from Western and non-Western countries, civil law and common law systems. The conventional wisdom would suggest that civil law judges would rely more heavily on teachings, but this is not evident from the data.
The Court and the judges apparently read teachings much more than they cite them. This serves to obscure the Court’s and the judges’ decision-making process. If they cited teaching more often, transparency would increase, and it would be easier for potential litigants to predict the outcome of future cases. Counterarguments against copious citations are the need to keep opinions readable and the Court’s apparent desire not to let its authority rest on the views of scholars.
Another normative issue is the demographics of the most-cited authors. If the range of cited writers was more diverse, the Court would be closer to realising its ideal of being a universal international institution. Counterarguments are that the judges may prefer works that they are familiar with and that they think will have more weight. The skewed demographics is also influenced factors that the Court cannot control, such as where teachings are produced and published, or what counsel cite.
Comparisons with other institutions
The final chapter of the book includes a comparison between the ICJ and other (international as well as national) courts and tribunals. The ICJ majority opinions are most similar to those in the ITLOS, since ITLOS majority opinions never cite teachings. The ICJ’s individual opinions have average citation numbers that most closely resemble the majority opinions in the WTO Appellate Body. International criminal courts and tribunals have cited teachings even more often.