10 Teachings of Publicists

Prof. Nitin Gomber

Introduction

Article 38(1)(d) of the ICJ Statute enumerates two subsidiary sources of International law for the determination of the rule of law: judicial decisions and the teachings of the most highly qualified publicists of the various nations. The most anticipated reasons for considering ‘the teachings of publicists’ as a subsidiary source of law is that they may often be influenced by political circumstances and have a national bias.

These ‘teachings’ can be generally understood as scholarly writings of acknowledged authorities in specific areas of international law. These ‘teachings’ may be of individual authors or can be works produced by groups of scholars working collectively in organizations like the International Law Commission, Amnesty International, Human Rights Council etc. Sources of these teachings include treatises and legal periodicals. Textbooks, journal articles and essays are used as a method of discovering what the law is on any particular point rather than as the source of actual rules, and the writings of even the most respected international publicists cannot create law. Writers and publicist have indeed played an important role in the formative period and growth of international law. The teachings of publicists are regularly cited in the judgments of international criminal courts and tribunals. Teachings of publicist have often been used to demonstrate widespread State practice, interpret a treaty provision, demonstrate a general principle of law, explain the practice of the Court itself, provide general context for a specific point or case, demonstrate the existence of a rule of law, and advocate for a change in the law.

The use of the undefined words ‘most highly qualified publicists’ under Article 38(1)(d) is ambiguous as it seems problematic to ascertain who are the most highly qualified publicists in the concerned field of international law. There may often be a dispute over who is a highly qualified publicist as it’s a relative standard rather than being an objective criterion. Shabtai Rosenne observes, “[t]here is, of course, no way of establishing who is a ‘most highly qualified publicist’ of any nation. This is a matter of the skill, knowledge, and appreciation of the individual legal advisor.”

Lee Peoples in his research guide on ‘teachings of most qualified publicists’ provides the following criterion to evaluate textbooks, articles, essays, periodicals, and reports published by individuals and institutions:

• Author’s Reputation: Has the work been reviewed and if so was the review favorable?; What else has this person written?; Have their articles been published in selective journals?; Are their books held by many libraries?; Are they well respected or considered an expert in the field by others, not just themselves?; Do they practice and if so in what areas and with what firm?; Have they practiced before foreign or international tribunals or handled any well-known cases?; What degrees do they hold?; If they are an academic where do they teach and what?
• Publisher’s Reputation
• Organization of the material in the publication
• Style and Readability of the material: Is the material scholarly (includes discussion of how the law has evolved over time, jurisprudential theories, public policy concerns with lots of citations to other treatises and law review articles) or is it more practice-oriented?
• Scholarly Attributes and Reference Features
• Availability Online
• Comparison with Other Titles on the subject
• Date of Publication: Have changes recently occurred in this area of the law that make currency important?; Is the work considered a classic despite its age?; How is the work updated?; Is there another title on the subject published more recently?

History

Sources of law as listed in Article 38 of the ICJ charter have been verbatim taken from the Statute of the Permanent Court of International Justice (PCIJ). In 1920 when the Advisory Committee, the multi-national committee of experts, tasked by the League of Nations to draft the PCIJ Statute, of Jurists was drafting the precursor to Article 38 (1)(d), President Descamps proposed the following text: “international jurisprudence as a means for the application and development of law”.

There was no mention of ‘teachings’ as a source in that draft. A subsequent revision of the text introduced a reference to the ‘opinions of writers.’ After some discussions, President Descamps suggested that some ‘objective justice’ must be introduced to the list of following sources: conventions, custom, the “legal conscience of civilised nations,” and international jurisprudence. He identified ‘teachings’ as rules of objective justice envisaging a situation where the judge may know what is objectively right but he may not take that course in the absence of a convention or custom. In such situations, the judge should be allowed to use the “the concurrent teaching of the authors whose opinions have authority.”5 Descamps explained, “if neither [treaty] law nor custom existed, could the judge pronounce a non liquet?.” In such situation of the judge decides to apply general principles of law he may be inclined to apply them according to his own understanding. Therefore, he suggested the inclusion of the doctrine of the publicists carrying authority as sources of law. Thereafter, the revised draft stated this source as “the opinions of writers as a means for the application and development of law.” Then after several arguments between committee members on whether it is feasible to include such a doctrine, if so on what standards and whether sovereign states will accept judgments based on opinions of legal writers, the compromised provision read, “the doctrines of the best-qualified writers of the various nations as a means for the application and development of law”. It was later revised as, “rules of law derived from … the teachings of the most highly qualified publicists of the various nations” to which Descamps suggested adding “as subsidiary means for the determination of rules of law” which was adopted as the final text. Therefore, the result of various disagreements between the committee members was this ambiguous provision.

Another probable cause of listing ‘teachings of most highly qualified publicists’ can be inferred from Oppenheim’s statement in his article ‘The Science of International Law: Its Task and Method’:

Apart from the International Prize Court agreed upon by the Second Hague Peace Conference but not yet established, there are no international courts in existence which can define these customary rules and apply them authoritatively to cases which themselves become precedents binding upon inferior courts. The writers on international law, and in especial the authors of treaties, have in a sense to take the place of the judges and have to pronounce whether there is an established custom or not, whether there is a usage only in contradistinction to a custom, whether a recognised usage has now ripened into a custom, and the like.

…   It is for this reason that textbooks of international law have so much more importance for the application of law than textbooks of other branches of the law.

In fact, Fitzmaurice stated that ‘[a] decision is a fact: an opinion, however cogent, remains an opinion’ and comparatively judicial decisions have ‘a more direct and immediate impact on the realities of international life.’

Development of Human Rights Law through Teachings of Most Highly Qualified Publicists

The ICJ has cited publicists in only 22 of its 139 Judgments and Advisory Opinions.9 It may be observed that courts have rather been reserved in resorting to this source in giving judgments. The writings of scholars contribute to the development and analysis of human rights law. Compared to the formal standard setting of international organs the impact is indirect. The ‘teachings of the most highly qualified publicists’ can be found in books, articles, bulletins, annual reports, commentaries, blogs, etc. by legal scholars, working individually or as part of an institution. It is important to consider the publicist’s standing in the international legal community and the degree to which the publicist’s views are shared by others for scholars who are widely known and respected are more persuasive than scholars who are less familiar with the Court.

Influential contributions have been made by scholars and experts working in human rights fora, for instance, in the UN Sub-Commission on the Promotion and Protection of Human Rights, United National Human Rights Council as well as by highly regarded NGOs, such as Amnesty International, Human Rights Watch and the International Commission of Jurists. Some of them have been briefly discussed below:

International Law Commission (ILC): Pursuant to Article 13, paragraph 1 of the UN Charter, the ILC was established by resolution of the UN General Assembly in 1947 to “initiate studies and make recommendations for the purpose of … encouraging the progressive development of international law and its codification”.10 In performing its dual responsibility of progressive development and codification, the ILC drafts conventions on the subjects that are not sufficiently developed, and formalize and systematize the rules that have emerged from state practice, precedent and teachings. It is comprised of 34 members elected by the General Assembly who is drawn from academia, diplomacy, government ministries, and international organizations. To promote the codification of international law, the ILC publishes draft articles setting out what it considers to be rules of customary international law where there has already been extensive state practice, precedent, and doctrine. These draft articles are accompanied by commentaries, written by a Special Rapporteur appointed by the ILC, and provide illustrative cases and analysis critical to a thorough understanding of the law sought to be codified. Each year the ILC publishes its Yearbook of the International Law Commission, containing its annual report to the General Assembly as well as any draft articles and commentaries adopted at its annual plenary session. It was concluded by Micheal Peil in a survey that the International Law Commission is far and away the most common source relied upon by the judges.11 The courts have often made use of the drafts and final publications of ILC and also the discussion in the ILC yearbook and to the conclusions reported by its Rapporteurs. In the realm of International Human Rights law, the ILC has published the following:

• Report on Reservations to multilateral conventions: In 1950 the General Assembly asked the ILC to study and report on the question of reservations to multilateral conventions in general, both from the point of view of codification and from that of the progressive development of international law. The Commission submitted its report in 1951 stating that clauses on reservations should be inserted in future conventions and asked the Secretary-General, in respect of future United Nations conventions, to act as depositary for documents containing reservations or objections thereto without passing on the legal effect of such documents.
• Code of crimes against the peace and security of mankind: In 1947 the General Assembly entrusted the Commission with the task of drafting a code of crimes against the peace and security of mankind. In 1954, the text was adopted by the ILC at its sixth session and submitted to the General Assembly as a part of the Commission’s report.
• Crimes against humanity: At its sixty-sixth session, in 2014, the ILC decided to include this topic in its programme of work and appointed Mr. Sean D. Murphy as Special Rapporteur for the topic. It is a work in progress.
• Text on jus cogens: At its sixty-seventh session, in 2015 the ILC decided to draft a text on jus cogens. It is a work in progress under the Special Rapporteur Mr. Dire D. Tladi.

United Nations Human Rights Council (UNHRC): UNHRC is United Nations inter-governmental body comprising of 47 States responsible for the promotion and protection of all human rights around the globe.13 It has established a Universal Periodic Review mechanism to assess the human rights situations in all United Nations Member States, and has a Advisory Committee which serves as the Council’s “think tank” providing it with expertise and advice on thematic human rights issues and the Complaint Procedure which allows individuals and organizations to bring human rights violations to the attention of the Council. UNHRC produces an extensive range of publications on a variety of topics related to human rights, which may be a resourceful guide for the court in delivering justice.

Amnesty International: Amnesty International is a non-governmental organization that started in 1961 in London focused on human rights with over 7 million members and supporters around the world.14 Its objective is to conduct research and generate action to prevent and end grave abuses of human rights and to demand justice for those whose rights have been violated by initiating campaigns in various forms.15 It annually publishes a report highlighting the state of human rights in countries around the world with an aim to mobilize the policymakers, jurists, and academia to stand up for human rights.

Human Rights Watch: Human Rights Watch is another non-governmental human rights organization established in 1978. It now comprises of about 400 members including country experts, lawyers, journalists, and academics of diverse backgrounds and nationalities. Its primary role is fact-finding, impartial reporting, effective use of media, and targeted advocacy. It annually publishes around 100 reports briefs on human rights issues around the world. These reports focus on specific issues within countries and regions: Arms; Business & Human Rights; Children’s Rights; Terrorism & Counterterrorism; Health & Human Rights; International Justice; Lesbian, Gay, Bisexual &Transgender Rights; Refugees; and Women’s Rights.

International Commission of Jurists: International Commission of Jurists is another dynamic non-governmental human rights organization based in Geneva. It was established in 1952 and consists of 60 eminent judges and lawyers from all regions of the world who strive to promote and protect human rights through the Rule of Law, by using its unique legal expertise to develop and strengthen national and international justice systems. International Commission of Jurist’s endeavors to ensure that international law, especially human rights and humanitarian law, is utilized effectively for protection, particularly for the most vulnerable, and is implemented through effective national and international procedures. It aims to assist judges, lawyers and prosecutors, acting under the highest ethical standards and professional integrity, to be independent, impartial, and free to carry out their professional duties. It publishes an annual report, monthly bulletin and other reports in current issues reporting the incidents of human rights violation and proposing adequate changes.

The Institut de droit international, the International Law Association, the ICRC and the American Law Institute are some other institutions that have also been referred to by the courts and individual judges in their decisions. The works published by the organizations above are often scholarly, well-researched and analytical. They are published for spreading awareness on the issues of human rights violation, provide analysis, gain media attention and be able to make their voices reach to those responsible for dispensing justice.

Following are instances where the ICJ cites scholarly opinions of the most highly qualified publicists to accentuate their decisions:

 In Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), the Court refers to the following publications of International Law Commission:

• Commentary to Articles in draft Code of Crimes against the Peace and Security of Mankind
• Yearbook of the International Law Commission, 1996, Vol. II
• Articles on the Responsibility of States for Internationally Wrongful Acts

In Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v Honduras), the Court refers to the following publications of International Law Commission:

• Yearbook of the International Law Commission, 1952, Vol. II
• Yearbook of the International Law Commission, 1956, Vol. I

Conclusion

Teachings of publicists are an important and influential subsidiary means for the determination of rules of international law. But these ‘teachings’ are certainly not rules to be applied but to be resorted to for finding applicable rules. As we observed in our discussion, the courts may rarely invoke scholarly opinions in their judgments, but this has not stopped lawyers from drawing court’s attention to teachings of the publicists. On this Sir Humphrey Waldock, later a Judge of the ICJ, observes that “[t]he way in which individual judges quite often make use of them in their separate opinions indicates that they have played a part in the internal deliberations of the Court and in shaping opinion.”16 These scholarly works serve as persuasive guides to the content and may be relied upon for information and analysis of a specific human rights violation. But there is a danger of misunderstanding when an isolated passage from a book or article is referred to, and it may not adequately reflect on the thoughts of the author. Also, in the author’s opinion another disadvantage of this source is that when Article 38(1)(d) was drafted, there were too less nations and qualified publicists as compared to today. In those times relying on scholarly opinion was a feasible option but with the existing number of scholars and their intellectual contributions, this source shall not assist the court in interpretation of law but rather create contradictions as there will be numerous opinions on one point. Many of the intellectual writings may also have political overtones.

Reference

1. The Development of International Law by the International Courts by Hersch Lauterpacht.
2. Rethinking the Sources of International Law by Godefridus J. H.Hoof.
3. The Subsidiary Sources, The Sources of International Law by Hugh Thirlway.