Introduction: Writers in International Law
The tapestry of the modern international legal system is woven not only from the threads of treaties and state practice but also from the intellectual rigor of “the teachings of the most highly qualified publicists.” While states are the primary legislators of international law, it is the writers, scholars, and jurists who have historically provided the conceptual scaffolding, the moral vocabulary, and the systemic coherence required to govern a world of sovereign equals. From the foundational “Natural Law” theories of the 17th century to the contemporary critiques of the 21st, legal scholarship acts as the “invisible hand” that guides the interpretation of rules and the filling of legal lacunae (gaps).
This article explores how the “pen” has shaped the “sword,” examining the transformative role of writers as a subsidiary source of international law under Article 38(1)(d) of the Statute of the International Court of Justice (ICJ).
The Doctrinal Foundation: Article 38(1)(d)
In the hierarchy of international legal sources, writers occupy a unique position. According to Article 38(1)(d) of the ICJ Statute, the Court shall apply “the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.”
Legal Concept
“Subsidiary” does not mean “unimportant.” It means that while a writer’s opinion cannot create a law (like a treaty can), it serves as the most authoritative evidence of what the law is or how it should be applied.
Practical Example
If two nations are arguing over the width of a “territorial sea” and there is no specific treaty between them, a judge will look at the writings of famous maritime scholars to see what the consensus has been over the last century.
The Classical Era: Grotius, Vattel, and the Birth of a System
Historically, writers were not just “subsidiary”; they were the primary architects.
- Hugo Grotius (The Father of International Law): In his seminal work De Jure Belli ac Pacis (1625), Grotius argued that law exists between nations regardless of religious differences. He moved law from “divine command” to “human reason.”
- Emer de Vattel: His work Le Droit des Gens (1758) introduced the concept of Sovereign Equality. He argued that a small republic is just as sovereign as a mighty empire, a concept that is now the bedrock of the UN Charter.
Writers as Evidence of Customary International Law
Customary International Law (CIL) requires “State Practice” and “Opinio Juris” (the belief that an action is a legal obligation). However, proving that 193 countries follow a rule is difficult. Writers do the “heavy lifting” by documenting these practices.
Leading Case: The Paquete Habana Case (1900)
In this case, the US Supreme Court had to decide if coastal fishing vessels were exempt from capture during wartime. Since there was no treaty, the Justice explicitly relied on the works of French, English, and American writers to prove that a “custom” existed.
“Where there is no treaty… resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators.”
The Interpretative Power: Shaping the Content of Treaties
Treaties are often written in vague language to ensure all parties sign them. Writers provide the “Commentaries” that define these terms.
Practical Example
The Geneva Conventions use the term “Armed Conflict.” What constitutes a “conflict” versus a “riot”? Scholars like Jean Pictet, through his commentaries, provided the definitions that military lawyers and courts use today to determine if war crimes have occurred.
Leading Case Law: Judicial Reliance on Scholarly Authority
| Case | Year | Scholarly Influence |
|---|---|---|
| Nottebohm Case (Liechtenstein v. Guatemala) | 1955 | Influenced by writings on “genuine link” and “effective nationality” |
| Island of Palmas Case | 1928 | Relied on doctrines of “effective occupation” versus “discovery” |
Practical Examples of Scholarly Influence
A. The Nuremberg Influence
Before the Nuremberg Trials, the idea of “Crimes Against Humanity” was largely a scholarly concept debated by writers like Hersch Lauterpacht and Raphael Lemkin (who coined the term “Genocide”). Without their academic persistence, the legal framework to prosecute Nazis might never have materialized.
B. International Environmental Law
The “Precautionary Principle” (acting to protect the environment even without full scientific certainty) began in academic journals before it was adopted in the 1992 Rio Declaration. Writers synthesized environmental ethics into legal “maxims.”
The Modern Shift: Collective Authorship and the ILC
In the modern era, the “individual writer” has been partially replaced by “collective expert bodies.” The most prominent is the International Law Commission (ILC).
Legal Concept
The ILC consists of 34 elected experts who “codify” law. When the ILC writes a draft article on “State Responsibility,” it is technically a “teaching of publicists,” but it carries such immense weight that the ICJ treats it almost like a treaty.
Leading Case: Gabčíkovo-Nagymaros Project (Hungary v. Slovakia, 1997)
The ICJ relied heavily on the ILC’s draft articles on the Law of Treaties and State Responsibility to decide if Hungary was justified in stopping a dam project.
Conclusion: The Enduring Legacy of the Scholarly Mind
In the grand architecture of international relations, if states are the builders, then the writers and jurists are the master architects. The development of international law is not merely a product of political necessity but a triumph of intellectual labor. Through the rigorous analysis of state behavior, the codification of disparate customs, and the brave conceptualization of new legal frontiers—from human rights to space law—scholars have transformed international law from a primitive set of bilateral “handshakes” into a sophisticated, global legal system.
The “teachings of publicists” serve as a vital bridge between what the law is (lex lata) and what the law ought to be (lex ferenda). As we have seen in landmark cases like The Paquete Habana and the Nottebohm Case, the judiciary does not operate in a vacuum; it leans heavily on the clarity and logic provided by the legal pen. Even as we transition into an era dominated by collective bodies like the International Law Commission, the core principle remains: legal rules are only as strong as the intellectual reasoning behind them. For students and practitioners alike, understanding the works of these writers is not just an academic exercise—it is an essential journey into the soul of the international legal order, ensuring that justice is guided by reason rather than power alone.
Written By: Judge Nazmul Hasan
Senior Judicial Magistrate | Prime Minister Gold Medalist
Profile Overview
p>Nazmul Hasan is a highly accomplished judicial officer and legal scholar from Bangladesh, distinguished by a rare blend of judicial service excellence and unparalleled academic achievement.
Professional Expertise
| Title | Achievement / Service | Details |
|---|---|---|
| Senior Judicial Magistrate | Bangladesh Judicial Service (BJS) | Serving as a Senior Judicial Magistrate, demonstrating profound expertise in dispensing justice and administering court procedures. |
| Service Rank | 11th Bangladesh Judicial Service (BJS) | Secured the 7th Merit Position overall in the rigorous 11th BJS competitive examination, marking an exceptional start to a distinguished judicial career. |
Academic Distinction
| Qualification | Institution | Recognition |
|---|---|---|
| LL.B. (Hons.) | University of Rajshahi | First Class First (Top of the Cohort), signifying ultimate academic mastery in undergraduate legal studies. |
| LL.M. | University of Rajshahi | Achieved First Class standing, further solidifying expertise and specialized knowledge in advanced legal disciplines. |
Honors & Achievements (Awards of Excellence)
- Prime Minister Gold Medalist (2017)
Awarded the nation’s most prestigious academic honor for outstanding performance across all disciplines at the university level. - Agrani Bank Gold Medalist for Academic Excellence (2023)
Recognized with this distinguished medal for sustained academic excellence and leadership in the field of law.
Contact Information
Email: [email protected]
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