Trial lecture - time and place
Adjudication committee
- Professor Ole Kristian Fauchald, University of Oslo (leader)
- Sir Michael Wood, 20 Essex Street Chambers,London (1. opponent)
- Emeritus Professor Christine Chinkin, London School of Economics and Political Science (2. opponent)
Chair of defence
Supervisors
- Professor Geir Ulfstein
- Dr. Michael Waibel
Summary
The topic of the thesis is how the International Court of Justice uses ‘teachings’ (or ‘academic literature’, ‘scholarship’, ‘doctrine’, etc.). The thesis is based on an examination of ICJ’s practice from its establishment in 1945 until November 2016. Individual opinions (i.e. dissenting and concurring opinions and declarations) are included. It is primarily these that cite teachings, since only a very few majority opinions cite teachings. The thesis has three parts: an analysis, possible explanations for the results of the analysis, and a normative assessment of the results of the analysis.
Analysis
One conclusion in the analysis section is that judges generally assign teachings low weight. The judges nonetheless seem to assign greater weight to certain works. The weight of individual works seems to be determined by the quality of the work, the author’s expertise and official positions (for example as a judge or governmental legal adviser) and whether there is agreement between multiple writers. Moreover, different judges use teachings in different ways. Around one third of the judges have never cited teachings. Some judges frequently cite teachings, and seem to assign them significant weight. The average judges lies somewhere between these extremities.
Explanations
The most plausible explanation for why the Court’s majority opinions almost never cite teachings, is a desire to maintain the Court’s peculiar position and authority in international law. The Court is supposed to be on a level above teachings, and it therefore refrains from acknowledging the existence of teachings. As for the low weight assigned to teachings, the best explanation is that teachings lack the official basis that other sources, especially judicial decisions and works by the International Law Commission (ILC), have. It is also relevant that teachings are usually created by one author, while judicial decisions and ILC works have multiple authors who represent different States and legal cultures. As for why different judges use teachings differently, their personal philosophy and style is an essential explanation. Practical factors are probably also important. For example, judges cite teachings more often in periods when they write fewer opinions. That judges assign more weight to certain works, and prefer to cite works with higher weight, can largely be explained by the judges’ desire to increase the authority of their opinions. Judges can also put greater trust in authoritative works, and thus save time by using them instead of doing a more thorough examination of the available teachings and other sources.
Normative assessments
The normative part of the thesis recommends that the Court should cite teachings more openly, in the sense the teachings should be cited when it plays a role in the Court’s deliberations. The judges mostly cite writers from Western countries, whereas international law is supposed to be global and universal. Therefore, it would be advantageous to cite a more geographically diverse selection of authors. However, it is probable that the current citation patterns are largely a result of the large amount of international legal research that takes place in Western countries.