Teachings of the most highly qualified publicists
Article 38 (1)(d) of the International Court of Justice Statute provides for two subsidiary sources of law: judicial decisions and "the teachings of the most highly qualified publicists."
International law was first systematized by the writings of publicists. In the early case law of the international courts the work of the publicists, such as Grotius, Pufendorf, and de Vattel, was often cited as the sole source.
It has been suggested that there exists an inverse relationship between the two subsidiary sources of Article 38. “…the weight of legal doctrine, so eminently influential in laying the foundations of International law, decreases with the growth of judicial activity….” In June 1945, when the ICJ statute was adopted, few international courts existed, hence it is not surprising that the use of doctrine, i.e. the writings of the publicists, as a source of international law, continued to weigh more heavily than did the paucity of judicial decisions.
Though still important today the writings of the publicists appear less in the decisions of international law courts than do judicial decisions. Despite the lack of citations to publicists in the courts’ decisions, the publicists continue to be often cited in the opinions and dissents of individual judges, as well as in pleadings before the court.
Zimmerman, at al. The Statute of the International Court of Justice: a Commentary. 2d ed. Oxford, UK: Oxford University press, 2013. footnote 983 on page 868
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