Finding ‘the Most Highly Qualified Publicists’: Lessons from the International Court of Justice

Abstract

Article 38(1) of the Statute of the International Court of Justice (ICJ Statute) instructs the Court to ‘apply … the teachings of the most highly qualified publicists’. This raises the question of how to decide who these ‘publicists’ are and how to rank them. This article suggests four factors that the Court’s judges apparently use when assessing the weight of ‘teachings’: the quality of the work, the expertise and official positions of the author(s) and agreement between multiple authors. Judges may invoke these factors because it can make their opinions more authoritative and saves time, and in order to conform with Article 38 of the ICJ Statute. Counting the authors and teachings that judges have highlighted as having high quality, being experts and holding prestigious official positions provides a list that is different from the lists of writers who are cited most often and by the most judges. While this gives a rough idea of who ‘the most highly qualified publicists’ may be, it also shows that a final, conclusive ranking cannot be given.