Scholarly Writings as a Source of Law: A Survey of the Use of Doctrine by the International Court of Justice

Abstract

Article 38(1)(d) of the Statute of the International Court of Justice instructs the Court to apply, as a subsidiary means for the determination of rules of law, ‘the teachings of the most highly qualified publicists,’ namely, scholarly writings. Based upon a survey of more than 600 Judgments, Advisory Opinions and Orders, this paper describes the International Court of Justice’s use of these sources and analyzes the individual scholars and writings which have been most useful to the Court. It also explores the meaning of a ‘subsidiary source’ and the contexts in which judges are most willing to utilize such sources.