Indeed, the Statute of the ICJ expressly provides that a decision of the Court is not binding on anyone except the partiers to the case in which that decision is given and even then only in respect of that particular case (Article 59). The position of legal adviser to the United Nations (UN) was brought up in connection to a question of UN law, which shows that at least this reference can also have been about insight gained from the position. This section identifies the factors that seem to influence the weight of teachings among ICJ judges.28 The factors are mainly based on apparent attempts by judges to ‘justify’ references to teachings by highlighting the quality of a work, the expertise of a writer, the official authority of a writer and agreement among multiple writers.
Mendelson, ‘The International Court of Justice and the Sources of International Law’, in V. Lowe and M. Fitzmaurice (eds), Fifty Years of the International Court of Justice: Essays in Honour of Sir Robert Jennings (1996) 63, at 84. More generally, judges often cite multiple authors for the same point. ‘Teachings’, which are mentioned in Article 38(1)(d) of the Statute of the International Court of Justice (ICJ Statute),1 are here defined as ‘books and articles, purporting to answer legal questions, being used when ascertaining the content of international law’.2 Works produced by the International Law Commission (ILC) are excluded because of the significant role of states in their production. E.g., Application of the Convention on Genocide, supra note 11, at 419, Dissenting Opinion of Judge ad hoc Mahiou. et de la C.I.J’, 32 Revue Belge de Droit International (1999) 205, at 228.
E.g., Accordance with International Law in Respect of Kosovo, supra note 45, at 464, Declaration of Judge Tomka, Vice President. Anglo-Iranian Oil Co. Case (jurisdiction), Judgment, 22 July 1952, ICJ Reports (1952) 93, at 167, Dissenting Opinion of Judge Levi Carneiro. South West Africa, Second Phase, Judgment, 18 July 1966, ICJ Reports (1966) 6, at 325–326, Dissenting Opinion of Judge Jessup (also cited by Military and Paramilitary Activities, supra note 10, at 267–268, Dissenting Opinion of Judge Schwebel). For example, in Bosnia Genocide, Judge ad hoc Milenko Kreća referred to teachings by William A. Schabas multiple times, but called Schabas ‘the learned author’ only once.29 A judge could also justify one reference because the judge perceives the work in question to have less weight than other works that are cited (without being justified). E.g., Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment, 3 February 2015, ICJ Reports (2015) 3, at 169, Separate Opinion of Judge Owada. There are examples of opinions where some references are justified, while others are not, and even footnotes where only some references are justified. Lex lata works may be more relevant than lex ferenda works to most judges because they prefer to find the law rather than to create it. Statute of the International Court of Justice 1945, 1946 UKTS 67. A. Clapham, Brierly’s Law of Nations: An Introduction to the Role of International Law in International Relations (7th edn, 2012), at 67. Gabčikovo-Nagymaros Project (Hungary/Slovakia), Judgment, 25 September 1997, ICJ Reports (1997) 7, at 91, Separate Opinion of Vice-President Weeramantry.
The adjective ‘well’ is also used in various contexts, as in ‘well described’ and the like.76, The IDI has been said to have been ‘preside[d] [over] with such distinction’,77 which presumably leads to a high-quality result.
Application of the Convention on Genocide, supra note 11, at 542, Separate Opinion of Judge ad hoc Kreća. This is in some sense similar to citing preparatory works. The ‘defensive’ function is about preventing criticism of an opinion, while the ‘offensive’ is about convincing others of its cogency.
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