Inevitable differences
While Article 38(1) of the ICJ statute states that judges ‘shall apply’ teachings, albeit as ‘subsidiary means’ this does not seem to be the case. Helmersen finds that "judges seem to consider themselves free not to cite teachings. In practice all judges, and not least their clerks, consult teachings, even if they do not cite them in the published opinions."
In his book Helmersen finds that there is variation in the use of teachings. When asked to reflect upon whether this is problematic, he explains that some variation is inevitable given that judges have different approaches and come from a variety of different backgrounds. There may be room to supplement the ICJ Statute with guidelines for judges. Still, these would have to leave considerable discretion to the judges.
It can be useful for judges to quickly consult authorative or 'classic' works, in order to make their arguments more persuasive and save time. However, there seems that only certain authors get cited by judges and this "may be a challenge for a global court that applies international law."
“Generally, the ICJ does not cite teachings in its majority opinions, however many judges cite teachings in individual opinions. Overall, teachings seem to be used far more than they are cited. Some judges cite teachings more than others, and certain writers are cited more than others,” Helmersen explains.
A multi-methods approach
Helmersen used different methodological approaches in 'The Application of Teachings by the International Court of Justice', legal analysis, empirical analysis of court opinions, and interviews with judges.
The first part of the book is a legal analysis of Article 38(1) of the ICJ Statute and its preporatory work. This is the starting point for the empirical analysis, explaining that the “book starts with a legal analysis of the ICJ Statute Article 38(1) and its preparatory works. This is necessary in order to have a formal starting point for the examination, but it gives only a limited picture of the role that teachings play in the Court’s reasoning.”
“The book’s most important methodological approach is an empirical analysis of all the Court’s opinions. The advantage of this approach is that provides a wealth of information about how and when judges cite teachings,”
Helmersen explains and continues: “This is a necessary supplement to the limited picture provided by the legal analysis.”
To supplement the empirical approach, Helmersen conducted interviews with some of the Court’s judges and staff. Through the interviews, Helmersen could test assumptions from the empirical analysis, and receive input on nuances that might be difficult to find in the Court’s opinions.
Measuring the importance of teachings
Helmersen explains that it is challenging to measure the importance of teachings: “Even defining the term is not straightforward. In the book it is defined as ‘a measure of how much teachings affect how a judge views and decides a legal question’. This can be seen as a psychological matter, and a full answer is not possible without knowing the internal thought process of every judge as each decision was handed down.”
Thus, to measure the importance of teachings, Helmersen used proxies, or substitute measures. One proxy was how often teachings were cited in judicial opinions: “More citations may indiciate more weight (but it is not conclusive proof),” says Helmersen. Another proxy is how teachings are used in the text. Here, Helmersen finds that when teachings are used, judges argue for the importance of writer or how well it is written. The pracitce is not the same for judicial decisions. “That indiciates that teachings in general have less weight than judicial decisions.”
Although the book is an important contribution to understanding the use of teachings in the ICJ, Helmersen points out that the book does not provide final answers on the importance of teachings. However,
The book includes a number of similar patterns, which lead to the overall conclusion that ICJ judges generally tend to accord teachings low weight.
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The book is part of the book series "Studies on International Courts and Tribunals" edited by Andreas Føllesdal and Geif Ulfstein.