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.

1 Introduction

This article explores the ‘factors’ that determine the weight of teachings in international law. ‘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. The article uses the practice of the International Court of Justice (ICJ) as a case study.³ The ICJ is the most authoritative international court and has a publicly available record of case law that stretches over 70 years, yet without being unmanageably large.⁴ Individual opinions are included in the study. Only a few ICJ majority opinions have cited teachings; the Court’s decision in Land, Island and Maritime Frontier Dispute made reference to ‘the successive editors of Oppenheim’s International Law’,⁵ to ‘G. Gidel, Le droit international de la mer (1934), vol. 3’ and to a work by Sir Cecil Hurst.⁶ The Namibia opinion cited a work by Jan Smuts.⁷ In Kasikili/Sedudu Island, one finds a reference to a document produced by the Institut de droit international (IDI).⁸ Works produced by the International Committee of the Red Cross (ICRC) have been cited in the Wall opinion⁹ and in the Nicaragua judgment.¹⁰ The reference in Bosnia Genocide to Raphael Lemkin’s book Axis Rule in Occupied Europe (1944) is not counted since it concerned only the ‘etymology of the word … genocide’ rather than a legal question.¹¹ Some ICJ majority opinions contain general references without naming specific works.¹² In short, the Court has cited specific works of teachings on a point of law only seven times in five cases. Teachings are cited far more in individual opinions, where the Court’s ‘“workings” are set out in more detail’, and they may therefore (better) ‘reflect the Court’s actual methods’.¹³ Individual opinions should ‘be regarded as throwing light upon the Court’s deliberations in preparing its judgment’.¹⁴ This is true regardless of the fact that, as sources of law, individual opinions are generally seen as being less important than majority opinions.¹⁵

Article 38(1) of the ICJ Statute mentions ‘the teachings of the most highly qualified publicists’ as a ‘subsidiary means’ to be applied by the Court when it ‘decide[s] in accordance with international law such disputes as are submitted to it’. Thus, the Court is expressly directed to ‘apply’ teachings. The provision formally only applies to the ICJ¹⁶ but is generally assumed to reflect customary international law.¹⁷ This fact, combined with the authoritative status of the ICJ, and the resulting desire for other actors to follow its practice, means that a study of the Court’s citation practice is significant for international law in general. The conclusions in this article are thus not limited to showing the Court’s practice, but they also say something about the status of teachings in international law as such.

Section 2 discusses a fundamental premise for the subsequent sections, which is that the weight of teachings varies between different works. Section 3 identifies the ‘factors’ that seem to determine the weight of specific works, and Section 4 shows how the practice of ICJ judges also indicates that authority in international law is established and maintained through a collective process that is largely implicit rather than being openly conducted. Section 5 then discusses incentives that could motivate judges to distinguish between more or less authoritative works and to prefer to cite the former. Section 6 uses the ‘factors’ presented in Section 3 as part of a methodology for identifying the writers who, according to the ICJ, are ‘the most highly qualified’, and Section 7 concludes.

2 Different Works Have Different Weight

The notion that there are ‘factors’ that determine the weight of teachings necessarily means that different works have different weight. The varying weight of teachings can, to some extent, be inferred from the wording of Article 38(1)(d) of the ICJ Statute, which mentions ‘the teachings of the most highly qualified publicists’ (emphasis added). This wording assumes that some writers are more qualified than others and that only the ‘most qualified’ are relevant to the ICJ. The wording of the ICJ Statute suggests an either/or distinction between ‘the most highly qualified’ and the rest, where the ICJ can only apply the teachings of the former. However, it is ‘difficult to decide who “the most highly qualified publicists”’ are.¹⁸ The standard is to some extent ‘subjective’¹⁹ and ‘cannot be conclusively proved’.²⁰ The concept of ‘qualification’ should be seen as a gradual progression from the least to the most qualified, where the more highly qualified are assigned more weight.²¹ That is what ICJ judges seem to do, by citing some writers more than others (as discussed in this part) and by emphasizing various ‘factors’ that seem to affect the weight of teachings (as discussed in Section 3).

A rejected proposal in the Permanent Court of International Justice’s (PCIJ) Advisory Committee of Jurists was to establish a formal ranking of teachings.²² While the proposal itself was unrealistic, it reveals an underlying view that the weight of teachings varies between different works. This variation is noted in the ILC’s Customary International Law Conclusions²³ and by writers.²⁴ ICJ judges have cited some writers more often than others. Table 1 shows the 10 most-cited writers and how many times they have been cited.²⁵ The tally does not include self-citations.²⁶ A list of the 40 most-cited writers is included in the  Appendix at the end of this article.

Table 1:

The 10 Most-Cited Writers

Rank	Writer	Citations
1	Rosenne, Shabtai	233
2	Lauterpacht, Hersch	119
3	Fitzmaurice, Gerald	67
4	Hudson, Manley O.	55
5	Oppenheim, Lassa	53
6	Jennings, Robert	52
7	de Visscher, Charles	51
8	Brownlie, Ian	42
9	Watts, Arthur	32
9	Stone, Julius	32

The results are illustrated in Figure 1, which lists the 10 most-cited writers along the horizontal x-axis and the number of times each has been cited along the vertical y-axis.

Figure 1:

The 10 Most-Cited Writers

Citations of teachings are ‘a useful measure of influence’, even though it ‘is not the same as influence’ and ‘only one measure of influence’.²⁷ Under this assumption, those most-cited writers are, at least prima facie, the ones whose works have the most weight and influence.

A related finding is that a small number of writers have been cited many times. The top 10 most-cited writers have been cited a total of 726 times, representing 17.9 per cent of a total 4,050 citations (again excluding self-citations). While a total of 1,280 writers have been cited in ICJ opinions, more than half of them (694) were cited only once. In other words, the top 0.8 per cent writers (726) have more citations than the bottom 50 per cent (640). Another significant finding is that the top 10 per cent most-cited writers have 2,077 citations, which is just over 50 per cent of the total. By contrast, the 10 per cent least-cited writers have 128 citations, which is 3 per cent of the total.

The results are illustrated in Figure 2. The largest slice represents the top 10 per cent most-cited writers, the second largest slice represents the 10–20 per cent most-cited writers and so on until the smallest slice, which represents the bottom 10 per cent.

Figure 2:

Writers’ Shares of All Citations

3 The Factors

A Introduction

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. Some judges do not ‘justify’ any of their references to teachings. Those who make such justifications do not justify all of their references. There are examples of opinions where some references are justified, while others are not, and even footnotes where only some references are justified. One reason for this is that a single justification may apply to multiple references. 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). For example, it is interesting that Judge ad hoc Syed Pirzada in Aerial Incident of 10 August 1999 (Pakistan v. India) justified his reference to R. P. Anand by calling him a ‘well-known Indian writer’ but did not justify references to Ian Brownlie or Shabtai Rosenne.³⁰ The latter two are among the Court’s most-cited writers, and Judge ad hoc Pirzada may have felt that it was necessary to justify including Anand in the same context. On the other hand, a judge may justify one reference to show that it has a greater significance than other references. An example could be Judge ad hoc Christine Van den Wyngaert in the Arrest Warrant case, who referred to one work as ‘very thorough’ and the rest as ‘other’.³¹ In any of these cases, the implication seems to be that different teachings have different weight.

It is possible to compare how often each type of justification is made. This gives a rough indication of the relative importance of each factor. The quality of works and the expertise of writers are the most common types of justifications, with 198 mentions of quality and 190 of expertise. The official positions of writers were mentioned 107 times, while agreement between writers was mentioned 32 times. The ILC, in Customary International Law Conclusions, argues that ‘it is the quality of the particular writing that matters rather than the reputation of the author’,³² and Sandesh Sivakumaran seems to agree.³³ While the purely quantitative analysis in this paragraph suggests that expertise and quality are equally important in practice, this finding does not finally settle the matter. It is not possible to know precisely how important each judge considers the two factors (to the extent that they even have a clear view on the matter). The most plausible view is that this varies from judge to judge (and, more generally, from lawyer to lawyer).

B Expertise

This section argues that judges give more weight to writers whom they consider experts. This is indicated by judges’ practice of justifying references to teachings by emphasizing the expertise of the writer.³⁴ For example, judges have used terms that reflect the general expertise of writers, calling them ‘expert’,³⁵ ‘learned’,³⁶ ‘distinguished’³⁷ and a variety of similar terms. Judges have also used terms that apparently focus on other actors’ perceptions of the writers, such as ‘well-known’,³⁸ ‘famous’,³⁹ ‘influential’⁴⁰ and other such terms. Some statements highlight the consistent quality of an author’s works, such as ‘characteristically thoughtful’,⁴¹ ‘characteristically thorough’⁴² and ‘characteristic cogency’,⁴³ which is another way of saying that the author is an expert. Yet another writer was praised for having ‘so often and so brilliantly contributed to the cause of international law and justice’.⁴⁴ Some statements draw more historical lines. Judge Antônio Trindade often discusses the ‘founding fathers’ of international law.⁴⁵ Among them are ‘Grotius himself’,⁴⁶ as referred to by Judge Christopher Weeramantry. Weeramantry has also (and similarly) referred to ‘fountainheads of international law’.⁴⁷ Some judges have designated writers, works or institutions as having ‘authority’⁴⁸ being ‘authoritative’⁴⁹ and similar terms. Further praise has focused on more specific competence. Writers have been called ‘one of the forerunners of the international protection of human rights’,⁵⁰ ‘the first writer on intervention before the PCIJ’,⁵¹ ‘the leading author on genocide’⁵² and many similar designations.

A single reference to a writer being ‘most qualified’⁵³ is the only one that mirrors the wording of Article 38(1)(d) of the ICJ Statute. However, the terms mentioned here all generally seem to express the same sentiment that was inferred from the ICJ Statute in Section 2 of this article that some writers are more ‘highly qualified’ than others and that this affects the weight of their teachings. Writers have also been singled out for being ‘one of the directors of’ the ‘Revista peruana de Derecho internacional’⁵⁴ and ‘Secretary of the Institute of International Law’.⁵⁵ The point seems to be that these positions imply and require a certain expertise. Along with the reference to the ‘Secretary of the Institute of International Law’, the institute was said to have ‘had a substantial share in the preparation of the first drafts of the Convention’ that was discussed.⁵⁶ This means that the expertise was not just on a general level but also related specifically to the legal instrument that was at issue in the case.

The IDI as such has also been the subject of praise.⁵⁷ It has been called ‘authoritative’⁵⁸ and ‘learned’⁵⁹ (alongside the International Law Association [ILA]). Judge Weeramantry in Nuclear Weapons noted that an IDI resolution was supported by ‘an illustrious list of the most eminent international lawyers of the time’.⁶⁰ The implication may be that even though the IDI as an institution has a certain authority, the expertise of the specific individuals who are at any time involved in its work affects the weight of that work. The assumption that the weight of teachings varies by the writer’s expertise is also found in the teachings themselves⁶¹ and in the ILC.⁶² Jean d’Aspremont suggests that the reputation of the institution where a writer is employed can be used as a proxy for expertise, which is plausible.⁶³

C Quality

Judges justify some citations of teachings by saying something about the quality of the specific work. Various terms have been used. Some terms relate to qualities of the text itself, such as ‘clearly’,⁶⁴ ‘objective’,⁶⁵ ‘comprehensive’⁶⁶ and various others. Other terms focus specifically on the judges’ use of the teachings, such as ‘useful’,⁶⁷ ‘valuable’,⁶⁸ ‘helpful’⁶⁹ and the like. Yet other terms are about other actors’ perceptions of the teachings. These include, among others, ‘generally accepted’,⁷⁰ ‘celebrated’⁷¹ and ‘influential’.⁷² The terms ‘standard’,⁷³ ‘classic’⁷⁴ and ‘leading’⁷⁵ may also be taken as attributes that are shaped by the perceptions of other actors; what is a, or the, standard, leading or classic work in a field depends on the views of the actors in that field. 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. One writer’s observations were ‘useful to note’.⁷⁸ Another writer was part of a ‘predominant legal theory’,⁷⁹ while yet another’s work contained some of ‘the insights of modern analytical jurisprudence’.⁸⁰ One judge referred to ‘De Jure Belli ac Pacis itself’,⁸¹ apparently implying that this work has a special status. One work had ‘never been surpassed’.⁸² Other writings were ‘without any exaggeration whatever’.⁸³ Yet another work ‘better described’ the law.⁸⁴ Other works have been called ‘the most exhaustive treatise on the subject’⁸⁵ and ‘respectable authority’.⁸⁶ One work was said to have ‘persuasive force’.⁸⁷ In another case, there was ‘not better’ writing on a subject than the teachings that were cited.⁸⁸ Another opinion cited ‘a unique systematic work’.⁸⁹ One judge argued that ‘a court of law need not look beyond the words of Charles de Visscher’.⁹⁰

Some justifications straddle the line between referring to the author (as described in Section 3.B above) and the work itself (as described in this sub-section). For example Judge Schwebel in the Nicaragua case referred to an ‘authoritative’ interpretation (which is about the work) but did so in connection with mentioning that the author was a former legal director of the Organization of American States (which is about the author).⁹¹ The joint separate opinion of Judges Rosalyn Higgins, Pieter Kooijmans and Thomas Buergenthal in the Arrest Warrant case referred to ‘the authoritative Pictet commentary’.⁹² This is a reference to the work, but its author was employed by the ICRC, which also published the text and which has a significant role in the field on international humanitarian law. These references should be seen as belonging to both categories, which illustrates that both quality and expertise are important to the weight of teachings.

That works of high quality have more weight means that works of low quality have less. An example of a judge pointing to the low quality of specific teachings is found in the opinion by Judge Shigeru Oda in Land, Island and Maritime Frontier Dispute. He noted that, while scholars were unanimous, this had ‘little … value’ because their conclusions were based on a single decision of the Permanent Court of Arbitration, which, according to Judge Oda, they had read too much into.⁹³

The assumption that the weight of teachings depends on their quality is shared by writers⁹⁴ and by the ILC in Customary International Law Conclusions.⁹⁵ Writers mention various aspects of such quality. For example, Rosenne argues that ‘non-governmental scientific organizations’ have ‘a special place’ because their works are produced through ‘a Socratic dialog, cut and thrust coupled with a great deal of give and take’.⁹⁶ Sivakumaran similarly claims that ‘[t]he process through which the teaching is created is also of relevance’.⁹⁷ Quality may therefore also be a matter of procedure, as opposed to merely substance, as long as that procedure can be presumed to produce good substance.

Stephen Hall mentions ‘relevance’ and ‘age’ among ‘factors that are relevant in determining the relative persuasive weight attached to different’ teachings.⁹⁸ André Oraison also mentions age.⁹⁹ However ‘age’ in this sense is already covered by ‘relevance’, since older works will grow less relevant as the law changes. Age alone should not therefore have any independent effect on the weight of a work. Moreover, relevance is a not an appropriate factor for determining the weight of teachings; it is instead significant when deciding whether it is useful to consult and cite them in the first place. This is why, even though the ‘relevance’ of teachings has been emphasized by judges,¹⁰⁰ it is not mentioned in the above list of the ways in which judges emphasize the quality of teachings.

Another aspect of ‘quality’ that is emphasized by various writers is whether the work is objective, including whether it sticks to lex lata discussions, as opposed to straying into lex ferenda territory.¹⁰¹ Similar assumptions about weight and objectivity can also be found in the ILC’s work on customary international law.¹⁰² They are also reflected in national judicial decisions such as the US Supreme Court’s Paquete Habana decision¹⁰³ and West Rand Central Gold Mining Co. v. The King from the English High Court of Justice.¹⁰⁴ This point of view finds support in the use of ‘objective’ as a term to justify references to teachings in individual opinions, as noted at the beginning of this sub-section. 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. D’Aspremont mentions ‘place of publication … among the parameters that determine whether an argument gains authority’.¹⁰⁵ This is plausible, but ICJ judges’ opinions do not reveal whether they consider it.

D Official Positions

According to the ICJ opinions that are studied here, the official position of a writer seems to affect the weight of their teachings. Many of the most-cited writers in the ICJ have themselves been ICJ judges or have held other official positions – for example, as government legal advisers or counsel. For example, among the 10 most-cited writers mentioned in Section 2 of this article, five were judges of the PCIJ and ICJ (Hersch Lauterpacht, Gerald Fitzmaurice, Manley Hudson, Robert Jennings and Charles de Visscher). Arthur Watts was a government legal adviser, and Rosenne was an ambassador. This is an indication that the official position of the writer affects the weight accorded to their teachings.

Judges, moreover, have justified their references to teachings by mentioning some official position held by the author.¹⁰⁶ In ICJ opinions, there are many references to a writer being either a ‘Judge’¹⁰⁷ or ‘President’¹⁰⁸ of the ICJ itself. Having been a ‘Judge’¹⁰⁹ or ‘President’¹¹⁰ of the PCIJ has also been mentioned, as has being a member of ‘both courts’.¹¹¹ A ‘President of the Arbitral Tribunal of Upper Silesia’ has been cited,¹¹² and one writer was described generally as an ‘international judge’.¹¹³ Some opinions have referred to judges ‘writing extra-judicially’,¹¹⁴ ‘out of court’¹¹⁵ and ‘in another context’¹¹⁶ (than as a judge). A plausible interpretation of this is the fact that the writer also being a judge gave the teachings added weight.

These references may have had varying motivations. The argument here is that the primary motivations are the writer’s special insights, general expertise and acceptability to states; having an official position of this kind usually means being involved in the creation and application of international law, which gives a special insight into the rules in question. Those who are appointed to such positions must generally possess significant expertise in international law in order to be considered in the first place. Appointments and elections are often decided by states, and being appointed will therefore usually imply that one’s views on, and approach to, international law is found acceptable by at least one state.

Some references included the nationality of the author and judge in cases where that country or region was involved in the case (one reference was to Canada,¹¹⁷ another to Latin America¹¹⁸). This may be because those writers are seen as having a special relevance to the case. A similar example is the reference to writings by ‘a former President of the Court himself’,¹¹⁹ when the legal question under discussion concerned the meaning of the ICJ Statute. Most of the presidents and judges are designated as ‘former’. Some references instead refer to the writings of someone who only later became a judge at the Court; one writer was ‘now a Judge of the International Court of Justice’,¹²⁰ two others were ‘later’ a member and vice-president of the Court respectively,¹²¹ while one was ‘shortly to become’ an ICJ judge.¹²² In these cases, special insight gained from the position at the Court could not be the motivation for the reference. Rather, their later appointment to the Court should be seen as a proxy for their expertise and their acceptability to states.

In the cases mentioned here, there are more references to presidents (17) of the ICJ than there are to regular judges (12). This finding is despite the fact that there are 14 times as many judges as presidents on the Court at any time. Regardless of the fact that all presidents have also been judges and that the average tenure as president is shorter than that of a judge, there are more former judges than former presidents of the ICJ. The discrepancy in justifications may be caused by the assumption that the position of president requires more personal competence, gives a greater insight into the work of the Court and represents a greater degree of trust from states.

Judges citing teachings have also mentioned that writers have been ‘Registrars’ of the ICJ.¹²³ This position has some of the same features as that of judge, in that it may denote insight into the work of the Court, personal competence and proximity to states. Furthermore, judges have mentioned that writers have been members of the ILC.¹²⁴ ILC membership is based on personal competence, gives insight into the development of specific areas of international law and requires approval by states.

A different group of references to teachings has mentioned the writer’s participation in the drafting of the rules that the judge was discussing. They include negotiators, delegates and advisers in the negotiations of legal documents¹²⁵ and (other) members of drafting or revision committees or conferences.¹²⁶ One writer had prepared a draft of a treaty provision,¹²⁷ another made a ‘prominent contribution to the discussion leading to the drafting of’ the ICJ’s own rules.¹²⁸ Similar references are to writers who were ‘Secretary of the Institute of International Law, which had a substantial share in the preparation of the first drafts of’ a treaty (as mentioned in Section 3.B), a ‘former Belgian delegate and jurisconsult whose knowledge of the United Nations dates from the San Francisco Conference’¹²⁹ and ‘who was present on behalf of [the] Court both in the Committee of Jurists at Washington and in the relevant Committee of the Conference of San Francisco’.¹³⁰ The motivation behind these references seems to be the special insight that participation in negotiations may provide. This is in some sense similar to citing preparatory works. However, some citations cannot have been motivated by special insights – for example, one reference is to a writer who ‘later became a member of the Committee which drafted the Statute of the Permanent Court’.¹³¹ Since this author at the time the cited text was written had yet to participate in the negotiations, the reference cannot have been motivated by any special insight that the writer could have gained. Writers having participated in negotiations also says something about their personal competence more generally and demonstrates a form of proximity to states.

Some references have concerned writers who have held official positions in intergovernmental organizations and the like: one ‘Secretary-General of both the Stockholm and the Rio Conferences’,¹³² one ‘Deputy Secretary of the United Nations Sea-Bed Committee’,¹³³ one ‘Vice-Chairman of the Permanent Mandates Commission’ (and ‘one of the most active members’)¹³⁴ and one ‘former Director of the Department of Legal Affairs of the OAS’.¹³⁵ These references also may have been about expertise, insight gained from experience and acceptability to states. Other opinions refer to writers’ positions in state governments, such as a ‘Legal Adviser of the United Kingdom’s (UK) Permanent Mission to the United Nations between 1991–1994’,¹³⁶ a US ‘Assistant Secretary of State for International Organization Affairs’,¹³⁷ a ‘President of the Supreme Court of Senegal’¹³⁸ and other similar positions. The posts of supreme court judge and legal adviser require some competence as a lawyer, and the references may in part be about the expertise of the writer. However, the position of assistant secretary of state is more of a political, than a legal, job and does not imply competence to the same extent on legal questions. It rather implies proximity to state power. 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.

Finally, some references do not fit any of the paragraphs above but, nonetheless, seem to focus on the official authority of the writer. A general reference to a writer being ‘no less an insider than …’ is one example.¹³⁹ Another reference was to a writer who was a ‘well-known ... statesman’,¹⁴⁰ and yet another was to writings by the ‘counsel’ in the present case.¹⁴¹ One judge mentioned that a writer was ‘cited in the Counter-Memorial of Peru as an authority in matters of American international law’.¹⁴² The implication seems to be that when a state approves of teachings by incorporating arguments into their memorial, this gives the teachings a veneer of official authority. A study of the World Trade Organization’s (WTO) Appellate Body shows that ‘many of the authors that have been cited the most … have connections with governments’.¹⁴³ This finding is in line with the ICJ’s emphasis on the official positions of writers.

The assumption that a writer’s official position affects the weight of writings is also shared by writers themselves. For example, teachings mention that the ‘repute’,¹⁴⁴ ‘prestige’¹⁴⁵ or ‘reputation’¹⁴⁶ of a writer is a factor when determining the weight of teachings. This should be read as a reference to, among other things, official positions held by the writer. According to Michael Waibel, ‘[t]he influence of interpretive communities is inversely related to their openness’.¹⁴⁷ This should mean that official positions that are more difficult to obtain also give the office holder a greater influence on the law, including through teachings. Alain Pellet holds that judges ‘form a very special part of the legal doctrine in that, sitting on the bench, their authors have had the benefit of listening to the contrary arguments of the parties’.¹⁴⁸ Thus, some of the increased weight of teachings written by judges is explained by the judges’ immersion in specific cases. This cannot be a full explanation, however, since justifications of citations based on official authority are not limited to legal issues with which the writers dealt in an official capacity.

E Agreement between Multiple Writers

Another factor that affects the weight of teachings is whether multiple works are in agreement. Various examples can be found in the ICJ’s practice. First of all, among the seven references to teachings in the ICJ’s majority opinions (as mentioned in Section 2), one is to multiple works (‘the successive editors of Oppenheim’s International Law’), while another three are to collective bodies (the IDI and the ICRC twice). Thus, only a minority of the citations of specific works (three out of seven) are to individual works by individual writers. Other majority opinions have contained unspecific references to ‘writers’, ‘writings’ and the like, which should be read as a reference to multiple works in agreement. Thus, the ICJ’s majority opinions have mostly invoked multiple writers at the same time as opposed to individual writers.¹⁴⁹

In individual opinions, some judges have referred to ‘agreement’ between teachings¹⁵⁰ and to views that have been ‘accepted’¹⁵¹ or ‘approved’¹⁵² by other teachings as well as to various other similar phrases. One judge ad hoc asked rhetorically whether ‘the Court [should] not have given more consideration to the factor that war crimes and crimes against humanity have, by many, been considered to be customary international law crimes’.¹⁵³ Thus, the opinion of ‘many’ – presumably writers – matters.

Judges have also used lack of agreement among writers as an argument against giving weight to their views. One judge argued that ‘some authorities seem to support’ one view, but ‘most authorities do not mention’ it ‘and even reject it’.¹⁵⁴ A judge ad hoc found it significant that a ‘controversial interpretation’ was ‘not upheld by the greater part of scholarly opinion’.¹⁵⁵ Judge ad hoc Kreća in Croatia Genocide cited an ILC text that, ‘however, mentions only one article’, implying that the failure to cite multiple works that were in agreement with each other reduced the weight of the ILC text.¹⁵⁶

Works by collective institutions such as the IDI will by definition be backed by multiple concurring individuals. This should give them a default level of weight that is greater than that of ‘regular’ teachings. There are examples of judges who apparently consider IDI texts to be authoritative.¹⁵⁷ A particularly interesting example is Judge Weeramantry’s opinion in Nuclear Weapons, where he emphasized how an IDI resolution ‘was adopted by 60 votes, with one against and two abstentions’.¹⁵⁸ Thus, it was significant not just that the resolution came from the IDI but also that such a large number of people concurred. Judge (and former President) Peter Tomka, sitting in an academic panel, similarly ‘expressed his scepticism regarding the value of resolutions adopted by learned societies purporting to reflect customary international law when, for instance, few members of that society are present and the resolution is adopted by a thin majority’.¹⁵⁹ Individual ICJ opinions contain a total of 191 references to ‘institutional’ teachings: 85 to the IDI, 29 to the ICRC, 18 to the ILA, 15 to the American Law Institute and 14 to Harvard Law School.

It may also be significant that a single writer has held the same view consistently. For example, Judge Philip Jessup in South West Africa noted that, ‘[a]fter a decade had passed, Lord McNair evidently found no reason to change his view’.¹⁶⁰ As mentioned above, one of the two references to specific teachings in ICJ majority opinions was to ‘the successive editors of Oppenheim’s International Law’. The significance of this may have been not only that multiple editors agreed but also that individual editors held on to their views throughout successive editions. More generally, judges often cite multiple authors for the same point. One motivation for this is probably that citing multiple writers is seen as being more authoritative than citing only one.

The idea that the weight of teachings in international law varies with the number of agreeing writers finds support in the Renard case from the English Court of Admiralty, which asked rhetorically ‘who shall decide, when doctors disagree?’.¹⁶¹ The Franconia case from the English Court for Crown Cases Reserved nonetheless reminds us of the limits of scholarly unanimity, by noting that ‘no unanimity on the part of theoretical writers would warrant the judicial application of the law on sole authority of their views’.¹⁶² Scholars themselves assume that teachings have more weight if multiple writers agree,¹⁶³ as does the ILC.¹⁶⁴ An interesting aspect of agreement between writers is whether the writers represent different regions of the world. Scholars argue that this is one reason why collective institutions (such as the IDI) ‘have special authority’,¹⁶⁵ and the ILC’s Customary International Law Conclusions agrees.¹⁶⁶ However, it is not clear that this is something ICJ judges consider important.

4 The Collective Nature of Authority in International Law

There are numerous examples of individual ICJ opinions that, when citing teachings, use terminology that implies that weight is determined through a collective process. As mentioned in Section 3, Judges have referred to works and authors as being, for example ‘well-known’, ‘famous’, ‘influential’, ‘celebrated’ and ‘generally accepted’. The same point can be inferred from terminology that is used in the teachings themselves. For example, ‘repute’,¹⁶⁷ ‘prestige’,¹⁶⁸ ‘recognised competence, impartiality and authority’¹⁶⁹ and similar terms have been mentioned as factors that affect the weight of teachings. These terms must necessarily refer to a collective process.

More generally, the concepts of quality, expertise and the authority of an institution cannot be ascertained by a single individual in a vacuum. What one person finds to constitute quality, expertise and authority depends, at least to some extent, on the judgment of others. There is thus a continuous collective process that produces a loose consensus about what constitutes ‘quality’ in writings about international law, about who the greatest ‘experts’ on international law are and about which institutions are the most authoritative.¹⁷⁰ However, the process itself and its results are rarely explicitly discussed or written down. The process is, instead, informal and largely tacit.

An interesting aspect of this is what may be called the ‘Matthew effect’, meaning that ‘rewards tend to be skewed towards those who are already highly reputed’.¹⁷¹ When a specific work is cited in a judicial decision, this may have been done because that work has more weight than others, but it also may give the cited work even more weight simply because of the fact that it was cited in a judicial decision.¹⁷²

5 Incentives for Judges

A Introduction

Judges have the incentive to use and cite authoritative teachings. Three such incentives are discussed here: increasing the authority of the judges’ opinion, saving time and complying with Article 38(1)(d) of the ICJ Statute.

B Increased Authority

Citing an authoritative work may make a judicial opinion look more authoritative. Lawyers aspire to have their work accepted by others. This holds true not only of academics who publish research and of lawyers pleading before judges but also of judges themselves.¹⁷³ Therefore, one reason why judges cite teachings seems to be that they think it will improve how they are perceived by other actors.¹⁷⁴ Teachings can therefore be cited ‘for strategic reasons’.¹⁷⁵ It is possible to distinguish between a ‘defensive’¹⁷⁶ and an ‘offensive’ aspect of this ‘strategic’ function. The ‘defensive’ function is about preventing criticism of an opinion, while the ‘offensive’ is about convincing others of its cogency. References to teachings can ‘enhance … credibility’, ‘create the impression of being thoroughly versed in the relevant literature’ and associate the judge ‘with greatness’.¹⁷⁷ This may in turn ‘contribute to the overall persuasiveness of judicial opinions, helping to create a general impression that decisions are well supported’.¹⁷⁸ According to Tony Cole, teaching citations ‘can … increase the persuasiveness of the award for the parties’¹⁷⁹ and can ‘[reduce] the likelihood that the tribunal’s award will be controversial, as it can be seen to be based upon a trustworthy source’.¹⁸⁰ In this context, more authoritative teachings will be a more ‘trustworthy source’.

However, the opposite effect is also possible in that an absence of references to teachings may make a judicial decision look more authoritative. The implication of not citing teachings may be that the judge considers their opinion to be authoritative enough on its own. This is a plausible reason why ICJ majority opinions almost never cite teaching (as noted in Section 1), while teachings are cited more frequently in individual opinions, which have a lower inherent authority.¹⁸¹ It is intuitive that higher quality works are more authoritative. A work that is better written, more thorough or more ‘celebrated’ (as per Section 3.C), will be more likely to espouse views with which other lawyers agree. This is significant when authority is seen as a collective process, as discussed in Section 4.

When judges cite works with which their audiences are unfamiliar, the judges must themselves be in a position to distinguish authoritatively between higher quality and lower quality teachings in order for the authority-by-association effect to apply. ICJ judges have this authority, but not all lawyers do. However, if audiences repeatedly disagree with a judge’s designation of high quality teachings, trust in the judge’s assessments is undermined. Judges therefore have an incentive not to invoke quality too often and to do so only when they actually believe that the work is good. An additional effect of emphasizing the quality of a cited work is that it shows that the judge has made an effort to assess the work and a conscious choice about citing it. Judges can cite works that they have not even read,¹⁸² but by emphasizing the quality of a cited work, the judge shows that the citation is ‘genuine’. This makes the opinion look more thorough and informed, which contributes to its authority.

Much the same applies to expertise. The title of expert is generally extended to writers who have a history of espousing views with which others have agreed and to writers who possess outstanding knowledge and insight about the law, which in turn makes them more likely to hold views that are shared by others. More expert writers therefore have more authority, and citing them contributes to the authority of an opinion more than citing less expert writers. ICJ judges are in a position to distinguish authoritatively between more and less expert writers.

According to the analysis presented in Section 3, references to a writer’s official positions are used as proxies for their expertise and their acceptability to states. Citing a writer who is acceptable to states in an opinion increases the likelihood that states will have a favourable view of the opinion. This is particularly important to the ICJ since it is states that bring the Court’s cases, and compliance with the Court’s decisions is dependent on states accepting them (since decisions are not enforced).

While judges rely on their own authority when they assess quality and expertise, such authority is less important when judges refer to writers’ official positions. There is a rough, but broad, agreement about which official positions confer what authority in international law, while there is less agreement on the precise quality and expertise of every specific writer and scholarly work. Judges also tend to emphasize that multiple writers agree. All else being equal, when more writers agree on a point, it is more likely that they are correct. This point is nevertheless tightly bound up with expertise and quality. The opinion of one outstanding writer is worth more than the opinion of two poor ones (and probably even more than 10 poor ones). The significance of agreement between writers as an authority-enhancing factor therefore increases exponentially when it is combined with the other factors discussed here.

C Saving Time

On a more practical level, citing authoritative writers can save time for judges. This is in part because authoritative writers are, at least presumably, more likely to be correct about the law. Joseph Raz argues that ‘[a]uthoritative utterances can be called “content‐independent” reasons’, meaning that they are ‘not conditional on … agreement on the merits’.¹⁸³ Gleider Hernández uses similar terminology and holds that ‘content-independent’ authority ‘carries weight due to the probability of having merit’.¹⁸⁴ Applied to judges citing teachings, this means that judges can trust the views of authoritative writers and spend less time on independent research or prolonged deliberation. Similarly, Cole points out that consulting teachings ‘allows [judges] to draw from expertise it might not itself possess’ and ‘can … increase the likelihood that [their] understanding of international law is correct’.¹⁸⁵ Another way to phrase this is that teachings ‘relieve the judge’¹⁸⁶ since they allow a judge ‘to invoke the authoritative writing and proceed without further analysis or argument’.¹⁸⁷ While this time-saving function of teachings can be significant, it also carries risks. Teachings are ‘at one remove’ from ‘primary sources’,¹⁸⁸ and reliance on them may discourage independent consultation of the sources that are cited. Teachings, for example, may be used ‘as evidence of the existence and content of custom instead of thoroughly analyzing state practice’.¹⁸⁹

Relying on a writer whose expertise is reputable can undoubtedly save a judge time. If the judge knows that the writer is good, they can look at their work and trust that it is likely to be correct. The same is true for a writer who holds, or has held, an important official position since official positions can be seen as proxies for expertise, as discussed in Section 3. In addition, citing a writer who holds an official position may contribute to the persuasiveness of the opinion towards the institution in question. Citing the writings of a sitting ICJ judge could increase the likelihood that the opinion will be accepted by that judge or even by the Court as a whole.

By contrast, reading (and citing) multiple writers who agree necessarily takes time and is therefore not something that will save time for judges. A similar point can be made about citing high quality works. A work must usually be read quite thoroughly in order to establish its quality, which also takes time. If a judge already knows that a work is good, they can consult it more quickly next time. If the second time around they consult a specific passage or chapter whose quality they have not yet assessed, they can build on a presumption of quality, which can save time. If the presumption is extended to other works by the same writer, it is more correct to say that what is invoked is the writer’s expertise rather than the quality of the work. Therefore, quality is not part of the ‘content-independent’ authority discussed above.

D Compliance with Article 38 of the ICJ Statute

ICJ judges are bound by the ICJ Statute, including Article 38. They should therefore be interested in grounding their methodological approach in the wording of Article 38. The first three factors discussed in Section 3 of this article – expertise, quality and official position – can be linked to the phrase ‘the most highly qualified publicists’ in Article 38(1)(d) of the ICJ Statute. The ‘most highly qualified publicists’ are those with the most expertise. In many cases, they will also write the highest quality teachings. Holding an important official position should also be seen as an aspect of being ‘most highly qualified’. This is because appointment requires expertise and because doing the work enhances expertise. Moreover, the official positions in question are ones that confer a certain authority merely by holding the office. In regard to the fourth factor – unanimity – this too has a connection to Article 38(1)(d) of the ICJ Statute, which speaks about ‘teachings’ and ‘publicists’ in plural. The fact that these writers should represent different regions is in line with the wording of Article 38(1)(d) and its focus on ‘publicists of the various nations’. All of the factors that were identified in Section 3 above can thus be traced back to Article 38(1)(d). The factors are part of the legal framework that governs the work of the ICJ and its judges.

That being said, the determination of what constitutes ‘quality’ and ‘expertise’ will to some extent be subjective. Judges can form their own opinion on what constitutes good legal writing, who is a good lawyer and (to a lesser extent) which official positions are the most authoritative. While the community of international lawyers has developed certain shared guidelines, as discussed in Section 4, individual lawyers and judges are to some extent free to form their own views. Thus, while the factors are part of the Court’s legal framework, they do not ‘bind’ or restrict the judges to any significant extent.

6 Who Are ‘the Most Highly Qualified Publicists’?

The data presented in this article make it possible to count which writers are subject to the highest number of ‘justifications’ (that is, where judges justify a reference to teachings by emphasizing the quality of a work or the expertise or official position of the writer). The first nine are Lauterpacht, Rosenne, Eduardo Jiménez de Jiménez de Aréchaga, Fitzmaurice, Hudson, Jennings, Lassa Oppenheim, Max Huber and C. Wilfred Jenks, while the tenth spot is shared between Taslim Elias, Gaetano Morelli, Samuel Pufendorf, Gustav Radbruch, George Scelle and Christian Wolff. The data are illustrated in Figure 3, which shows writers along the horizontal x-axis and the number of times judges have ‘justified’ citations of the writers along the vertical y-axis.

Figure 3:

Writers by Number of ‘Justifications’ of Citations

An alternative way to identify the ‘most highly qualified publicists’ is to count who is cited most often – the 10 most-cited writers, as mentioned in Section 2, are Rosenne, Lauterpacht, Fitzmaurice, Hudson, Oppenheim, Jennings, de Visscher, Brownlie, Watts and Julius Stone.

Counting the number of judges who cite a writer is thus a useful supplement to counting how many times each writer is cited since ‘individual judge’s preferences skew the data’.¹⁹⁰ The 10 writers cited by the highest number of judges – Rosenne, Lauterpacht, Oppenheim, Jennings, Hudson, Fitzmaurice, de Visscher, Brownlie, Watts and Humphrey Waldock – are illustrated in Figure 4, which shows the writers along the horizontal x-axis and the number of judges who have cited them along the vertical y-axis.

Figure 4:

Writers by Number of Judges Citing Them

This figure shows that while the numerical analyses identify Rosenne as the most-cited writer among ICJ judges, the most ‘justified’ writer is Lauterpacht. None of these statistics say anything final or decisive about who the ‘most highly qualified publicists’ are, but they do say something about which writers the judges think highly of and prefer to cite. It can also be mentioned that Lauterpacht is cited, and written about, on a wider variety of topics than Rosenne, who focused heavily on the procedural law of the ICJ itself. Who are ‘the most highly qualified publicists’ should depend on which area of international law one is talking about.

7 Conclusion

This article has argued that ICJ judges consider the following factors when assessing the weight of teachings: the quality of a work; the expertise of a writer; the official positions of a writer; and whether multiple writers agree. It seems that the process by which the weight of teachings is determined is collective, informal and largely tacit. Judges’ incentives for distinguishing between teachings and citing the ones with more weight probably include a desire to make their opinions authoritative and to save time. Compliance with the Court’s legal framework may also play a role, but this framework leaves judges significant discretion. Determining exactly who ‘the most highly qualified publicists’ are is difficult, including because counting citations and counting citations with ‘justifications’ yield different results and because the results may vary between fields of international law.

This article has explored one aspect of how teachings are used by one Court; many research questions remain – concerning, for example, other courts and tribunals, other sources and subsidiary means that courts and tribunals apply, all of the other functions that teachings have in the international legal system and whether current practices are normatively defensible. The methodology used in this article could provide a foundation for such future inquires.

This article is based on a chapter from my doctoral dissertation at the University of Oslo, which is titled: ‘The Application of Teachings by the International Court of Justice’.

Footnotes

¹

Statute of the International Court of Justice 1945, 1946 UKTS 67.

²

Helmersen, ‘The Use of Scholarship by the WTO Appellate Body’, 7 Goettingen Journal of International Law (2016) 309, at 314.

³

Between Admission of a State to the United Nations (Charter, Art. 4), Advisory Opinion, 28 May 1948, ICJ Reports (1948) 57; Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom), Preliminary Objections, Judgment, 5 October 2016, ICJ Reports (2016) 833.

⁴

E.g., D.J. Harris, Cases and Materials on International Law (8th edn, 2015), at 42.

⁵

E.g., R. Jennings and A. Watts (eds), Oppenheim’s International Law (9th edn, 1992), vol. 1, at 42–43.

⁶

Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), Judgment, 11 September 1992, ICJ Reports (1992) 351, at 592, 594.

⁷

Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 21 June 1971, ICJ Reports (1971) 16, at 48.

⁸

Kasikili/Sedudu Island (Botswana/Namibia), Judgment, 13 December 1999, ICJ Report (1999) 1045, at 1062.

⁹

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, ICJ Reports (2004) 136, at 176 (the reference at 175 is excluded because the work was apparently produced by governments rather than the International Committee of the Red Cross).

¹⁰

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, 26 November 1984, ICJ Reports (1986) 14, at 124–125.

¹¹

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, 26 February 2007, ICJ Reports (2007) 43, at 125.

¹²

Nottebohm Case (Second Phase), Judgment, 6 April 1955, ICJ Reports (1955) 4, at 22–23; Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, ICJ Reports (1996) 226, at 259; North Sea Continental Shelf, Judgment, 20 February 1969, ICJ Reports (1969) 3, at 35; LaGrand (Germany v. United States of America), Judgment, 27 June 2001, ICJ Reports (2001) 466, at 501, 508.

¹³

J. Crawford, Brownlie’s Principles of Public International Law (8th edn, 2012), at 43.

¹⁴

D.W. Greig, International Law (2nd edn, 1976), at 48; similarly S. Rosenne, The Perplexities of Modern International Law (2004), at 44.

¹⁵

E.g., Virally, ‘The Sources of International Law’, in M. Sørensen (ed.), Manual of Public International Law (1968) 116, at 153–154.

¹⁶

E.g., Fitzmaurice, ‘Some Problems Regarding the Formal Sources of International Law’, in M. Koskenniemi (ed.), Sources of International Law (2000) 57, at 77.

¹⁷

E.g., G.M. Danilenko, Law-Making in the International Community (1993), at 33–36.

¹⁸

C. Parry, The Sources and Evidence of International Law (1965), at 108.

¹⁹

E.g., T. Hillier, Sourcebook on Public International Law (1998), at 94.

²⁰

E.g., R.M.M. Wallace and O. Martin-Ortega, International Law (7th edn, 2013), at 30.

²¹

Zarbiyev, ‘Saying Credibly What the Law Is: On Marks of Authority in International Law’, 9 Journal of International Dispute Settlement (2018) 291, at 309 generally notes that ‘authority … is something of which one can have more or less’.

²²

Permanent Court of International Justice, Advisory Committee of Jurists, Procès-Verbaux of the Proceedings of the Committee June 16th–July 24th 1920 with Annexes (1920), at 336.

²³

International Law Commission (ILC), Report of the International Law Commission Sixty-Eight Session (2 May–10 June and 4 July–12 August 2016), Doc. A/71/10 (2016), at 111.

²⁴

E.g., American Law Institute, Restatement of the Law of Foreign Relations of the United States (1987), vol. 1, at 38.

²⁵

Jennings, Watts, Oppenheim, Jiménez de Aréchaga and Brownlie are also among the most-cited writers in the World Trade Organization’s Appellate Body. Helmersen, supra note 2, at 333–334.

²⁶

Antônio Augusto Cançado Trindade has been cited 297 times but only by himself.

²⁷

Sivakumaran, ‘The Influence of Teachings of Publicists on the Development of International Law’, 66 International and Comparative Law Quarterly (2017) 1, at 3.

²⁸

This terminology is found, for example, in S. Hall, Principles of International Law (2nd edn, 2006), at 59.

²⁹

Application of the Convention on Genocide, supra note 11, at 542, Separate Opinion of Judge ad hoc Kreća.

³⁰

Aerial Incident of 10 August 1999 (Pakistan v. India), Jurisdiction of the Court, Judgment, 21 June 2000, ICJ Reports (2000) 12, at 95–96, Dissenting Opinion of Judge ad hoc Pirzada.

³¹

Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, 14 February 2002, ICJ Reports (2002) 3, at 166, Dissenting Opinion of Judge ad hoc Van den Wyngaert.

³²

ILC, supra note 23, at 111.

³³

Sivakumaran, supra note 27, at 12.

³⁴

Ibid., at 11.

³⁵

E.g., Request for Interpretation of the Judgment of 15 June 1962 in the Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thailand), Judgment, 11 November 2013, ICJ Reports (2013) 281, at 339–340, Separate Opinion of Judge Cançado Trindade.

³⁶

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.

³⁷

E.g., Fisheries case, Judgment, 18 December 1951, ICJ Reports (1951) 116, at 182, Dissenting Opinion of Sir Arnold McNair.

³⁸

E.g., North Sea Continental Shelf, supra note 12, at 157, Dissenting Opinion of Vice-President Koretsky.

³⁹

Corfu Channel Case, Judgment, 9 April 1949, ICJ Reports (1949) 4, at 72, Dissenting Opinion by Judge Krylov.

⁴⁰

Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures, Order, 13 September 1993, ICJ Reports (1993) 325, at 378, Separate Opinion of Vice-President Weeramantry.

⁴¹

Legal Consequences of South Africa in Namibia, supra note 7, at 168, Separate Opinion of Judge Dillard.

⁴²

Fisheries Jurisdiction (United Kingdom v. Iceland), Merits, Judgment, 25 July 1974, ICJ Reports (1974) 3, at 68, Separate Opinion of Judge Dillard.

⁴³

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Provisional Measures, Order, 10 May 1984, ICJ Reports (1984) 169, at 197–198, Dissenting Opinion of Judge Schwebel.

⁴⁴

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).

⁴⁵

E.g. Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, 22 July 2010, ICJ Reports (2010) 403, at 552–553, Separate Opinion of Judge Cançado Trindade.

⁴⁶

Land and Maritime Boundary between Cameroon and Nigeria, Preliminary Objections, Judgment, 11 June 1998, ICJ Reports (1998) 275, at 372–373, Dissenting Opinion of Vice-President Weeramantry.

⁴⁷

Maritime Delimitation in the Area between Greenland and Jan Mayen, Judgment, 14 June 1993, ICJ Reports (1993) 38, at 239, Separate Opinion of Judge Weeramantry.

⁴⁸

E.g. Case Concerning the Application of the Convention of 1902 Governing the Guardianship of Infants (Netherlands v. Sweden), Judgment, 28 November 1958, ICJ Reports (1958) 55, at 96, Separate Opinion of Judge Sir Hersch Lauterpacht.

⁴⁹

E.g. Arrest Warrant of 11 April 2000, supra note 31, at 72, Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal.

⁵⁰

Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, 1 April 2011, ICJ Reports (2011) 70, at 306, Dissenting Opinion of Judge Cançado Trindade.

⁵¹

Sovereignty over Pulau Ligitan und Pulau Sipadan (Indonesia/Malaysia), Application for Permission to Intervene, Judgment, 23 October 2001, ICJ Reports (2001) 575, at 647, Separate Opinion of Judge ad hoc Weeramantry.

⁵²

Application of the Convention on Genocide, supra note 11, at 347, Separate Opinion of Judge Tomka.

⁵³

Nuclear Tests (Australia v. France), Judgment, 20 December 1974, ICJ Reports (1974) 253, at 381, Dissenting Opinion of Judge de Castro.

⁵⁴

Colombian-Peruvian Asylum Case, Judgment, 20 November 1950, ICJ Reports (1950) 266, at 344, Dissenting Opinion by Judge Azevedo.

⁵⁵

Case Concerning the Guardianship of Infants, supra note 48, at 84, Separate Opinion of Judge Sir Hersch Lauterpacht.

⁵⁶

Ibid.

⁵⁷

E.g. Legality of the Threat or Use of Nuclear Weapons, supra note 12, at 500 and 518–519, Dissenting Opinion of Judge Weeramantry.

⁵⁸

Legal Consequences of South Africa in Namibia, supra note 7, at 162–163, Separate Opinion of Judge Dillard.

⁵⁹

Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment, 3 February 2012, ICJ Reports (2012) 99, at 194, 197, Dissenting Opinion of Judge Cançado Trindade.

⁶⁰

Legality of the Threat or Use of Nuclear Weapons, supra note 12, at 508, Dissenting Opinion of Judge Weeramantry.

⁶¹

H. Lauterpacht, The Development of International Law by the International Court (1958), at 24; Oppenheim, ‘The Science of International Law: Its Task and Method’, 2 American Journal of International Law (AJIL) (1908) 313, at 345; K. Wolfke, Custom in Present International Law (2nd edn, 1993), at 156.

⁶²

ILC, supra note 23, at 111.

⁶³

D’Aspremont, ‘Wording in International Law’, 25 Leiden Journal of International Law (LJIL) (2012) 575, at 582.

⁶⁴

E.g., Barcelona Traction, Light and Power Company, Limited, Judgment, 5 February 1970, ICJ Reports (1970) 3, at 192, Separate Opinion of Judge Jessup.

⁶⁵

Fisheries Jurisdiction, supra note 42, at 80, Separate Opinion of Judge de Castro.

⁶⁶

E.g., North Sea Continental Shelf, supra note 12, at 242, Dissenting Opinion of Judge Sorensen.

⁶⁷

E.g., Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, 19 November 2012, ICJ Reports (2012) 624, at 743, Declaration of Judge Keith.

⁶⁸

Application for Revision of the Judgment of 11 July 1996 in the Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, Judgment, 3 February 2003, ICJ Reports (2003) 7, at 70, Separate Opinion of Judge ad hoc Mahiou.

⁶⁹

Aerial Incident of 3 July 1988 (Islamic Republic of Iran v. United States of America), Order, 13 December 1989, ICJ Reports (1989) 132, at 157, Separate Opinion by Judge Shahabuddeen.

⁷⁰

Aegean Sea Continental Shelf, Judgment, 19 December 1978, ICJ Reports (1978) 3, at 69, Dissenting Opinion of Judge de Castro.

⁷¹

E.g., Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion, 20 July 1962, ICJ Reports (1962) 151, at 229, Dissenting Opinion of President Winiarski.

⁷²

E.g., Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, 24 February 1982, ICJ Reports (1982) 18, at 199, Dissenting Opinion of Judge Oda.

⁷³

E.g., Barcelona Traction, Light and Power Company, Limited, supra note 64, at 85, Separate Opinion of Judge Sir Gerald Fitzmaurice.

⁷⁴

E.g., Military and Paramilitary Activities in and against Nicaragua, supra note 10, at 546, Separate Opinion of Judge Sir Robert Jennings.

⁷⁵

E.g., Land, Island and Maritime Frontier Dispute, supra note 6, at 737, Dissenting Opinion of Judge Oda.

⁷⁶

E.g., Continental Shelf, supra note 72, at 97, Separate Opinion of Judge Ago.

⁷⁷

Legality of the Threat or Use of Nuclear Weapons, supra note 12, at 518–519, Dissenting Opinion of Judge Weeramantry.

⁷⁸

Ibid., at 543.

⁷⁹

Legality of the Threat or Use of Nuclear Weapons, supra note 12, at 322–323, Dissenting Opinion of Vice-President Schwebel.

⁸⁰

Arbitral Award of 31 July 1989, Judgment, 12 November 1991, ICJ Reports (1991) 53, at 163, Dissenting Opinion of Judge Weeramantry.

⁸¹

Land and Maritime Boundary between Cameroon and Nigeria, supra note 46, at 372–373, Dissenting Opinion of Vice-President Weeramantry.

⁸²

Military and Paramilitary Activities in and against Nicaragua, supra note 10, at 285–286, Dissenting Opinion of Judge Schwebel.

⁸³

Anglo-Iranian Oil Co. Case (jurisdiction), Judgment, 22 July 1952, ICJ Reports (1952) 93, at 167, Dissenting Opinion of Judge Levi Carneiro.

⁸⁴

Maritime Delimitation in the Area between Greenland and Jan Mayen, supra note 47, at 287, Separate Opinion of Judge Ajibola.

⁸⁵

South-West Africa–Voting Procedure, Advisory Opinion, 7 June 1955, ICJ Reports (1955) 67, at 104, Separate Opinion of Judge Lauterpacht.

⁸⁶

Barcelona Traction, Light and Power Company, Limited, supra note 64, at 183, Separate Opinion of Judge Jessup.

⁸⁷

Case Concerning the Guardianship of Infants, supra note 48, at 124–125, Separate Opinion of Sir Percy Spender.

⁸⁸

Colombian-Peruvian Asylum Case, supra note 54, at 364, Dissenting Opinion by M. Caicedo Castilla.

⁸⁹

Application of the Convention on Genocide, supra note 36, at 495, Separate Opinion of Judge ad hoc Kreća.

⁹⁰

Arbitral Award of 31 July 1989, supra note 80, at 119, Separate Opinion of Judge Shahabuddeen.

⁹¹

Military and Paramilitary Activities in and against Nicaragua, supra note 10, at 388, Dissenting Opinion of Judge Schwebel.

⁹²

Arrest Warrant of 11 April 2000, supra note 31, at 72, Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal.

⁹³

Land, Island and Maritime Frontier Dispute, supra note 6, at 748, Dissenting Opinion of Judge Oda.

⁹⁴

E.g., Oppenheim, supra note 61, at 345.

⁹⁵

ILC, supra note 23, at 111.

⁹⁶

S. Rosenne, Practice and Methods of International Law (1984), at 121.

⁹⁷

Sivakumaran, supra note 27, at 10.

⁹⁸

Hall, supra note 28, at 59–60.

⁹⁹

Oraison, ‘L’Influence des Forces Doctrinales Académiques sur les Prononcés de la C.P.J.I. et de la C.I.J’, 32 Revue Belge de Droit International (1999) 205, at 228.

¹⁰⁰

E.g., Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Provisional Measures, Order, 10 July 2002, ICJ Reports (2002) 219, at 262, Declaration by Judge Elaraby.

¹⁰¹

E.g., D’Amato, ‘What Does It Mean to Be an Internationalist?’, 10 Michigan Journal of International Law (1989) 102, at 104. However, Jennings, ‘What Is International Law and How Do We Know It When We See It’, in M. Koskenniemi (ed.), Sources of International Law (2000) 27, at 46–47, questions whether ‘such a distinction can readily be made’.

¹⁰²

ILC, Third Report on Identification of Customary International Law by Michael Wood, Special Rapporteur, Doc. A/CN.4/682 (2015), at 45; ILC, supra note 23, at 111.

¹⁰³

The Paquete Habana, (1900) 175 US 677, at 700 (US SC).

¹⁰⁴

West Rand Central Gold Mining Co. v. The King, [1905] 2 KB 391, at 402 (HC).

¹⁰⁵

D’Aspremont, supra note 63, at 582.

¹⁰⁶

The use of ‘Judge’ or ‘President’ (or, for that matter, ‘Professor’) as part of the name of a writer is not counted here. Such usage is excluded on the assumption that this is a formality similar to the use of ‘Mr.’ or ‘Ms.’, and more about courtesy and correctness than about praising the person referred to. However, Sivakumaran, supra note 27, at 11, includes judges referring to titles such as Dr. and Professor in his discussion.

¹⁰⁷

E.g., North Sea Continental Shelf, supra note 12, at 160, at Dissenting Opinion of Vice-President Koretsky.

¹⁰⁸

E.g., Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, 20 April 2010, ICJ Reports (2010) 14, at 114, Joint Dissenting Opinion Judges Al-Khasawneh and Simma.

¹⁰⁹

E.g., Admission of a State to the UN, supra note 3, at 109, Dissenting Opinion by M. Krylov.

¹¹⁰

E.g., Corfu Channel Case, supra note 39, at 53, at Dissenting Opinion by Judge Winiarski.

¹¹¹

Oil Platforms (Islamic Republic of Iran v. United States of America), Counter-Claim, Order, 10 March 1998, ICJ Reports (1998) 190, at 229, Dissenting Opinion by Judge ad hoc Rigaux.

¹¹²

South West Africa, supra note 44, at 434–435, Dissenting Opinion of Judge Jessup.

¹¹³

Obligations Concerning Nuclear Disarmament, supra note 3, at 897, Separate Opinion of Judge Tomka.

¹¹⁴

E.g., Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, 4 December 1998, ICJ Reports (1998) 432, at 504, Dissenting Opinion of Vice-President Weeramantry.

¹¹⁵

Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Application to Intervene, Order, 28 February 1990, ICJ Reports (1990) 3, at 21, Dissenting Opinion of Judge Shahabuddeen.

¹¹⁶

Legality of the Threat or Use of Nuclear Weapons, supra note 12, at 563, Dissenting Opinion of Judge Koroma.

¹¹⁷

Fisheries Jurisdiction, supra note 114, at 656, Dissenting Opinion of Judge Torres-Bernárdez.

¹¹⁸

Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Preliminary Objection, Judgment, 24 September 2015, ICJ Reports (2015) 592, at 6, Separate Opinion of Judge Cançado Trindade.

¹¹⁹

Judgment No. 2867 of the Administrative Tribunal of the International Labour Organization upon a Complaint Filed against the International Fund for Agricultural Development, Advisory Opinion, 1 February 2012, ICJ Reports (2012) 10, at 80, Separate Opinion of Judge Cançado Trindade.

¹²⁰

Aerial Incident of 10 August 1999, supra note 30, at 105.

¹²¹

E.g., Continental Shelf (Libyan Arab Jamahiriya/Malta), Application to Intervene, Judgment, 21 March 1984, ICJ Reports (1984) 3, at 141, Dissenting Opinion of Judge Schwebel.

¹²²

Military and Paramilitary Activities in and against Nicaragua, supra note 10, at 394, Dissenting Opinion of Judge Schwebel.

¹²³

E.g., Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Declaration of Intervention, Order, 4 October 1984, ICJ Reports (1984) 215, at 236, Dissenting Opinion of Judge Schwebel.

¹²⁴

E.g., Jurisdictional Immunities of the State, supra note 59, at 169–170, Separate Opinion of Judge Keith.

¹²⁵

E.g., Accordance with International Law in Respect of Kosovo, supra note 45, at 464, Declaration of Judge Tomka, Vice President.

¹²⁶

E.g., Case Concerning the Aerial Incident of July 27th, 1955 (Israel v. Bulgaria), Preliminary Objections, Judgment, 26 May 1959, ICJ Reports (1959) 127, at 174, Joint Dissenting Opinion by Judges Sir Hersch Lauterpacht, Wellington Koo and Sir Percy Spender.

¹²⁷

Maritime Delimitation in the Area between Greenland and Jan Mayen, supra note 47, at 237, Separate Opinion of Judge Weeramantry.

¹²⁸

Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Counter-Claims, Order, 17 December 1997, ICJ Reports (1997) 243, at 290, Dissenting Opinion of Vice-President Weeramantry.

¹²⁹

Legal Consequences of South Africa in Namibia, supra note 7, at 240, Dissenting Opinion of Judge Gerald Fitzmaurice.

¹³⁰

Case Concerning the Aerial Incident of July 27th, 1955, supra note 126, at 174, Joint Dissenting Opinion by Judges Sir Hersch Lauterpacht, Wellington Koo and Sir Percy Spender.

¹³¹

Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, 8 July 1996, ICJ Reports (1996) 66, at 142, Dissenting Opinion of Judge Weeramantry.

¹³²

Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) Case, Order, 22 September 1995, ICJ Reports (1995) 288, at 407–408, Dissenting Opinion by Judge ad hoc Sir Geoffrey Palmer.

¹³³

Fisheries Jurisdiction, supra note 42, at 38, Declaration by Judge Ignacio-Pinto.

¹³⁴

South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment, 21 December 1962, ICJ Report (1962) 319, at 451, Dissenting Opinion of President Winiarski.

¹³⁵

Military and Paramilitary Activities in and against Nicaragua, supra note 10, at 384, Dissenting Opinion of Judge Schwebel.

¹³⁶

Application of the Convention on Genocide, supra note 11, at 320, Separate Opinion of Judge Tomka.

¹³⁷

Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, 6 November 2003, ICJ Reports (2003) 161, at 387–388, Separate Opinion of Judge ad hoc Rigaux.

¹³⁸

Gabčikovo-Nagymaros Project (Hungary/Slovakia), Judgment, 25 September 1997, ICJ Reports (1997) 7, at 91, Separate Opinion of Vice-President Weeramantry.

¹³⁹

Pulp Mills on the River Uruguay, supra note 108, at 114, Joint Dissenting Opinion Judges Al-Khasawneh and Simma.

¹⁴⁰

North Sea Continental Shelf, supra note 12, at 157, Dissenting Opinion of Vice-President Koretsky.

¹⁴¹

Request for an Examination in the Nuclear Tests, supra note 132, at 386, Dissenting Opinion by Judge ad hoc Sir Geoffrey Palmer.

¹⁴²

Colombian-Peruvian Asylum Case, supra note 54, at 365, Dissenting Opinion by M. Caicedo Castilla.

¹⁴³

Helmersen, supra note 2, at 334.

¹⁴⁴

Hall, supra note 28, at 60.

¹⁴⁵

A. Clapham, Brierly’s Law of Nations: An Introduction to the Role of International Law in International Relations (7th edn, 2012), at 67.

¹⁴⁶

Wolfke, supra note 61, at 156.

¹⁴⁷

Waibel, ‘Interpretive Communities in International Law’, in A. Bianchi, D. Peat and M. Windsor (eds), Interpretation in International Law (2015) 147, at 156.

¹⁴⁸

Pellet, ‘Article 38’, in A. Zimmermann and others (eds), The Statute of the International Court of Justice: A Commentary (2nd edn, 2012) 731, at 869.

¹⁴⁹

E.g., Wolfke, supra note 61, at 156.

¹⁵⁰

E.g., Application of the Convention on Genocide, supra note 11, at 419, Dissenting Opinion of Judge ad hoc Mahiou.

¹⁵¹

E.g., Aegean Sea Continental Shelf, supra note 70, at 69, Dissenting Opinion of Judge de Castro.

¹⁵²

E.g., Barcelona Traction, Light and Power Company, supra note 64, at 144, Separate Opinion of Judge Tanaka.

¹⁵³

Arrest Warrant of 11 April 2000, supra note 31, at 156, Dissenting Opinion of Judge ad hoc Van den Wyngaert.

¹⁵⁴

Ibid., at 157–158.

¹⁵⁵

Application of the Convention on Genocide, supra note 11, at 404, Dissenting Opinion of Judge ad hoc Mahiou.

¹⁵⁶

Application of the Convention on Genocide, supra note 36, at 495, Separate Opinion of Judge ad hoc Kreća.

¹⁵⁷

E.g., Case Concerning the Arbitral Award made by the King of Spain on 23 December 1906, Judgment, 18 November 1960, ICJ Reports (1960) 192, at 224, Dissenting Opinion of Judge Urrutia Holguin.

¹⁵⁸

Legality of the Threat or Use of Nuclear Weapons, supra note 12, at 508, Dissenting Opinion of Judge Weeramantry.

¹⁵⁹

Judge Tomka, quoted in Amelia Keene (ed.), ‘Outcome Paper for the Seminar on the International Court of Justice at 70’, 7 Journal of International Dispute Settlement (2016) 238, at 260.

¹⁶⁰

South West Africa Cases, supra note 134, at 406, Separate Opinion of Judge Jessup.

¹⁶¹

The ‘Renard’, [1778] 165 All ER 51, at 51–52 (English Court of Admiralty).

¹⁶²

The Queen v. Keyn [1876] 2 Ex D 63, at 202 (English Court for Crown Cases Reserved).

¹⁶³

E.g., Lauterpacht, supra note 61, at 24.

¹⁶⁴

ILC, supra note 102, at 45.

¹⁶⁵

E.g., Virally, supra note 15, at 153.

¹⁶⁶

ILC, supra note 23, at 112.

¹⁶⁷

Hall, supra note 28, at 60.

¹⁶⁸

J.L. Brierly, The Law of Nations: An Introduction to the International Law of Peace, edited by H. Waldock (6th edn, 1963), at 66.

¹⁶⁹

Lauterpacht, supra note 61, at 24 (emphasis added).

¹⁷⁰

In the words of Zarbiyev, supra note 21, at 313, ‘[a]uthority … is a socially sanctioned deference entitlement’.

¹⁷¹

N. Duxbury, Judges and Jurists: An Essay on Influence (2001), at 11, referring to Merton, ‘The Matthew Effect in Science’, 159 Science (1968) 56, at 58.

¹⁷²

E.g., Sivakumaran, supra note 27, at 28.

¹⁷³

Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, 16 March 2001, ICJ Reports (2001) 40, at 151, Joint Dissenting Opinion of Judges Bedjaoui, Ranjeva and Koroma.

¹⁷⁴

Lupu and Voeten, ‘Precedent in International Courts: A Network Analysis of Case Citations by the European Court of Human Rights’, 42 British Journal of Political Science (2011) 413, at 413 (about judges citing judicial decisions).

¹⁷⁵

Schwartz and Petherbridge, ‘The Use of Legal Scholarship by the Federal Courts of Appeals: An Empirical Study’, 96 Cornell Law Review (2011) 1345, at 1354.

¹⁷⁶

Cole, ‘Non-Binding Documents and Literature’, in T. Gazzini and E. de Brabandere (eds), International Investment Law: The Sources of Rights and Obligations (2012) 289, at 314.

¹⁷⁷

Duxbury, supra note 171, at 9.

¹⁷⁸

Hume, ‘Strategic-Instrument Theory and the Use of Non-Authoritative Sources by Federal Judges: Explaining References to Law Review Articles’, 31 Justice System Journal (2010) 291, at 295.

¹⁷⁹

Cole, supra note 176, at 303.

¹⁸⁰

Ibid., at 309.

¹⁸¹

Manley, ‘Citation Practices of the International Criminal Court: The Situation in Darfur, Sudan’, 30 LJIL (2017) 1003, at 1006.

¹⁸²

E.g., Merritt and Putnam, ‘Judges and Scholars: Do Courts and Scholarly Journals Cite the Same Law Review Articles’, 71 Chicago-Kent Law Review (1996) 871, at 873.

¹⁸³

J. Raz, The Morality of Freedom (1986), at 35, 40.

¹⁸⁴

G.I. Hernández, The International Court of Justice and the Judicial Function (2014), at 171.

¹⁸⁵

Cole, supra note 176, at 301, 303.

¹⁸⁶

Wolfke, supra note 61, at 156.

¹⁸⁷

Cole, supra note 176, at 308–309.

¹⁸⁸

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.

¹⁸⁹

Roberts, ‘Traditional and Modern Approaches to Customary International Law: A Reconciliation’, 95 AJIL (2001) 757, at 775.

¹⁹⁰

Peil, ‘Scholarly Writings as a Source of Law: A Survey of the Use of Doctrine by the International Court of Justice’, 1 Cambridge Journal of International and Comparative Law (2012) 136, at 160.

Appendix: The 40 Most-Cited Writers

Rank	Writer	Citations	Including self-citations
	(Trindade, A.A. Cançado)	(0)	(297)
1	Rosenne, Shabtai	233
2	Lauterpacht, Hersch	119
3	Fitzmaurice, Gerald	67	(72)
4	Hudson, Manley O.	55
5	Oppenheim, Lassa	53
6	Jennings, Robert	52
7	de Visscher, Charles	51
8	Brownlie, Ian	42
9	Watts, Arthur	32
9	Stone, Julius	32
11	Schwarzenberger, Georg	31
12	Higgins, Rosalyn	30	(31)
12	Schachter, Oscar	30
14	Guyomar, Geneviève	28
14	Aréchaga, Eduardo Jiménez de	28
16	Jenks, C. Wilfred	24
16	McNair, Arnold	24
16	Hambro, Edvard	24
19	Brierly, James Leslie	23
20	Guillaume, Gilbert	22
21	Anzilotti, Dionisio	21
21	McDougal, Myres S.	21
21	Waldock, Humphrey	21
24	Kelsen, Hans	20
24	Schabas, William A.	20
26	Cheng, Bin	19
26	Thirlway, Hugh	19
28	Kolb, Robert	18
28	O’Connell, Daniel Patrick	18
	(Simma, Bruno)	(8)	(18)
30	Reuter, Paul Jean-Marie	17
31	Grotius, Hugo	16
31	Guggenheim, Paul	16
31	Tams, Christian	16
31	Verhoeven, Joe	16
31	Elias, Taslim O.	16
	(Oda, Shigeru)	(7)	(16)
36	Jessup, Philip C.	14	(18)
36	Robinson, Nehemiah	14
36	Singh, Nagendra	14
36	Vattel, Emer de	14
40	Buergenthal, Thomas	13
40	Rousseau, Charles	13
40	Shelton, Dinah L.	13
40	Wright, Quincy	13
40	Bedjaoui, Mohammed	13

Note: The numbers exclude self-citations. Numbers and names in parenthesis are included in order to show where certain writers would rank if self-citations were included.