A. State-Empowered Entities

The first category of publicist is the publicist that has been empowered by States to draw up a particular teaching. A number of entities have been created by States, or otherwise later empowered by States, and ‘granted authority to make decisions or take actions, such as developing, interpreting, applying, and enforcing international law’.Footnote ¹⁸ These entities are of different types, and some of the work they undertake involves the conclusion of teachings.

The International Law Commission (ILC), for example, was established by the UN General Assembly, which was itself established by States.Footnote ¹⁹ It has a mandate to codify and progressively develop international law,Footnote ²⁰ and, on this basis, has produced draft Articles and other works. Another example is the Office of the UN High Commissioner for Refugees (UNHCR), which was created by the UN General Assembly and is empowered to promote ‘the conclusion and ratification of international conventions for the protection of refugees, supervis[e] their application and propos[e] amendments thereto’.Footnote ²¹ At the suggestion of a State, UNHCR's Executive Committee, itself composed of States, requested UNHCR ‘to consider the possibility of issuing—for the guidance of governments—a handbook relating to procedures and criteria for determining refugee status’.Footnote ²² UNHCR thus published its Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees.Footnote ²³ The International Committee of the Red Cross (ICRC) is of a somewhat different order, but still falls within the notion of a State-empowered entity. Although the ICRC was created by a group of private individuals and not by States, it was later empowered by States to carry out various functions, thus satisfying the ‘empowerment’ aspect of a State-empowered entity. The Statutes of the International Red Cross Movement, which were adopted by the International Conference of the Red Cross,Footnote ²⁴ provide that the role of the ICRC is ‘to work for the understanding and dissemination of knowledge of international humanitarian law applicable in armed conflicts and to prepare any development thereof’ and ‘to carry out mandates entrusted to it by the International Conference’.Footnote ²⁵ With this mandate in mind, the ICRC has published Commentaries on the Geneva Conventions and Additional Protocols and, at the request of the International Conference of the Red Cross and Red Crescent, a Study on Customary International Humanitarian Law.

There are numerous instances of a teaching of a State-empowered entity positing the existence of a norm, or suggesting an idea, before being picked up by States or in a judicial decision. The ILC, for example, has introduced many a novel idea into general international law. Today, the starting point of any discussion on the law of State responsibility is the ILC's Articles on that subject. Indeed, a 2007 report of the UN Secretary-General found that the draft articles had been cited in some 129 cases.Footnote ²⁶ Outside the topic of State responsibility, States have concluded treaties on the basis of ILC draft Articles, including the Vienna Convention on the Law of Treaties (1969), the Vienna Convention on Diplomatic Relations (1961), and the UN Convention on Jurisdictional Immunities of States and their Property (2004). Terminology used by the ILC, such as ‘contracting state’, ‘provisional application’ and ‘consent to be bound’ in the law of treaties, has also passed into general international law.Footnote ²⁷

The teachings of State-empowered entities are thus of a different order to the teachings of publicists without a connection to a State.Footnote ²⁸ Indeed, from a non-formalist perspective, State-empowered entities might best not be considered publicists at all. State-empowered entities have a close relationship with States in a way that ordinary publicists do not. They are empowered by States to carry out a law-making function broadly defined—for present purposes, to develop a teaching. States usually have a say in the election or appointment of individuals to the entity. States also have a role to play in the content of the teaching, for example, submitting their views to the entity or otherwise being involved in the drafting process. In addition, States have an important role to play following the finalization of the teaching, for example, accepting it or rejecting it.Footnote ²⁹

Thus, the teachings of State-empowered entities prove useful, in part, because they can be traced back to States. The importance of the mandate of the entity comes through from cases in which the teachings of State-empowered entities have been cited. For example, in the House of Lords, Lord Steyn expressed the view that ‘[i]t is not surprising … that the UNHCR Handbook … has high persuasive authority, and is much relied on by domestic courts and tribunals’ because ‘[u]nder articles 35 and 36 of the [Refugee] Convention, and under article II of the Protocol of 1967, the UNHCR plays a critical role in the application of the Refugee Convention’ and that ‘[c]ontracting states are obliged to co-operate with UNHCR’.Footnote ³⁰ Also important is the expertise of the entity, suggesting a certain level of knowledge, experience, and reputation. Justice Kirby of the High Court of Australia thus referred to the UNHCR Handbook and Guidelines because ‘of the expertise of the UNHCR in the application of the Convention’, the competence of UNHCR to ensure a ‘correct’ interpretation of the Convention, and the obligation of States parties to the Refugee Convention to co-operate with UNHCR and facilitate ‘its duty of supervising the application of the provisions of [the] Convention’.Footnote ³¹ Along similar lines, particular weight is given to the views of the ICRC ‘given its role in the development of international humanitarian law and the initiatives it has taken’.Footnote ³²

B. Expert Groups

A second category of publicist is the expert group or learned society that does not have a mandate from States. The category in question includes groups that are permanent in nature, such as the Institut de Droit International and the International Law Association, as well as groups that are established to carry out a specific project and then cease to operate, such as the group that produced the Maastricht Principles on Extraterritorial Obligations of States in the area of Economic, Social, and Cultural Rights.

Expert groups have not infrequently been the originators of new norms, approaches, and ideas. The International Law Association's Helsinki Rules on the Uses of the Waters of International Rivers (1966) is a case in point.Footnote ³³ The Rules have been recognized as constituting customary international law,Footnote ³⁴ and have influenced States in their adoption of instruments.Footnote ³⁵ The Helsinki Rules also influenced the ILC's work on the subject;Footnote ³⁶ and the UN Convention on the law of the non-navigational uses of international watercourses is based on the work of the ILA, the Institut de Droit International, and the ILC.Footnote ³⁷

Another pertinent example is the group of experts that drafted the San Remo Manual on International Law applicable to Armed Conflicts at Sea. The military manuals of States published since the adoption of the San Remo Manual draw heavily on it. For example, the UK Manual on the Law of Armed Conflict notes that ‘[t]he San Remo Manual is a valuable reference work and much of the present chapter reflects its content. When appropriate and possible the text of the San Remo Manual has been repeated in this chapter.’Footnote ³⁸ For its part, the Canadian Manual provides that the chapter on the law relating to the conduct of hostilities at sea is ‘derived from’ the San Remo Manual.Footnote ³⁹

The San Remo Manual is a good example of the influence of writings of publicists also because it demonstrates the potential of writings of individual publicists. On the issue of exclusion zones in the law of armed conflict at sea, the group of experts largely based their approach on an article by William Fenrick, who was himself one of the experts.Footnote ⁴⁰ The group of experts used the Fenrick article ‘as the basis for further study’ regarding the issue of exclusion zones,Footnote ⁴¹ and the influence of Fenrick's article is readily apparent. The rapporteur indicated that he shared the view of Fenrick that ‘the exercise of rights by belligerents in the zone are contingent upon a number of conditions’ and set out the same types of conditions as are discussed in the Fenrick article.Footnote ⁴² More concretely, the commentary to the section on exclusion zones in the San Remo Manual reproduces passages from the Fenrick article almost verbatim.Footnote ⁴³

The work of some expert groups has thus had a considerable impact on the law. However, the point should not be overstated, as the work of other expert groups has not had a noticeable effect. There does not seem to be an appreciable reason as to why the work of some groups has profoundly influenced the law while the work of other groups, equally distinguished, has not. Indeed, even though certain work-products of a group have exercised influence, other work-products of the same group have not.

The teachings of expert groups are considered to be particularly important and of a different order to those of ordinary publicists. Rosenne, for example, notes that ‘[i]n the context of the teachings of the most highly qualified publicists, a special place is reserved for the works of scientific organizations devoted to international law’, including the ILC, UNCITRAL, the Institute of International Law and the International Law Association.Footnote ⁴⁴ Along similar lines, Wolfke has noted that draft codifications of scientific societies ‘even if not accepted in extenso, are always taken into account, and have a strong bearing on the direction of developments of customary law in the given field of international life.’Footnote ⁴⁵ At the same time, the teachings of expert groups are fundamentally different from the teachings of State-empowered entities due to the lack of a mandate from States to prepare teachings and the inability to trace the teachings back to States.

A number of reasons explain the particular influence of expert groups. Of particular importance is their actual expertise. An expert group has to be made up of ‘experts’. For example, the Institut de Droit International is composed of leading international lawyers. The aforementioned group of experts that drafted the San Remo Manual included military lawyers, naval lawyers, government lawyers, ICRC lawyers, and leading academics. In this way, the knowledge and experience of numerous individuals, of various backgrounds, is accumulated and a shared view of the law is presented. If a large number of recognized experts have indicated the state of the law in a particular teaching, it becomes more difficult—though by no means impossible—to disagree with it.

The composition of the expert group can also prove important. Where the composition of the group takes into account geographical distribution, it is likely to be considered more representative and thus potentially more influential than a group that is solely from the global north or global south.Footnote ⁴⁶ It also avoids the criticism that is not infrequently directed at individual publicists, namely that a nationalist position is being taken.Footnote ⁴⁷ This is of particular importance when strongly divergent views are held on the issue under consideration.

The process through which the teaching is created is also of relevance. If interested actors have an opportunity to feed into the process that gives rise to the teaching, it not only makes it more rigorous and more realistic, but is more likely to lead to their buy-in to the final product. This includes having interested actors participate as members or observers of expert groups, provide comments on drafts, or otherwise feed into the process.

C. The ‘Ordinary’ Publicist

Perhaps the category which is most familiar is that of the ‘ordinary’ publicist.Footnote ⁴⁸ Teachings of individual publicists also contribute to the emergence of new ideas. For example, the tripartite ‘respect, protect and fulfil’ framework, familiar to anyone working with economic, social, and cultural rights, has its origins in work by Henry Shue and Asbjørn Eide. In a book published in 1980, Shue referred to duties ‘to avoid depriving’, ‘to protect from deprivation’, and ‘to aid the deprived’.Footnote ⁴⁹ He thus moved the discussion away from a single duty for each right. Around the same time, Eide developed the threefold typology that is used today—the obligation to respect, protect and fulfil.Footnote ⁵⁰ He published the typology in academic writing,Footnote ⁵¹ and later in a report in his capacity as Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities.Footnote ⁵² This tripartite framework has been followed, among others, by the Committee on Economic, Social and Cultural Rights,Footnote ⁵³ and now reflects orthodox thinking on the subject.

Along related lines, the right to development has been traced back to a lecture by Keba M'Baye at the International Institute of Human Rights.Footnote ⁵⁴ In that lecture, subsequently published, M'Baye distinguished between ‘le droit du développement’ and ‘le droit au développement’ and argued for a right to development. A few years later, the Commission on Human Rights, under the chairmanship of M'Baye, adopted a resolution which recommended that ECOSOC invite the Secretary-General to undertake a study on the matter.Footnote ⁵⁵ A study was prepared,Footnote ⁵⁶ which was considered by the Commission, and a resolution adopted, which ‘reiterate[d] that the right to development is a human right’.Footnote ⁵⁷ The General Assembly later declared that ‘the right to development is a human right’,Footnote ⁵⁸ and some years later, the Declaration on the Right to Development was adopted by 146 votes to 1 with 8 abstentions.Footnote ⁵⁹

There is no discernible reason as to why the teachings of one individual publicist are taken up and not those of another. However, as will be seen in section IV.C, an individual publicist who also has another role, such as a member of an expert group, or a UN expert, can have particular influence. As with expert groups, the expertise of an individual publicist and the quality of his or her teachings are of particular importance. The eminence of an individual publicist, usually based on his or her expertise, but also on associated factors such as title and reputation, can also affect the weight to be given to the work. In this way, the user can rest assured that the propositions stated in the work are reliable.

Courts and tribunals not infrequently signal the expertise of an individual publicist through the way in which they are described. Individual publicists are sometimes described as ‘eminent’Footnote ⁶⁰ or ‘learned’.Footnote ⁶¹ Others are introduced by their title of ‘Dr’ or ‘Professor’.Footnote ⁶² The job titles or institutional affiliation of still others are included, for example, ‘Professor Parry of Cambridge University’ or ‘the eminent Louis B. Sohn, the emeritus Bemis Professor of International Law at the Harvard Law School’.Footnote ⁶³ In this way, the reader is assured that the individual whose work is being relied upon is someone whose views really can be taken seriously.

Insofar as the qualifier ‘the most highly qualified’ publicists in Article 38(1)(d) of the Statute of the International Court of Justice is concerned, this is question-begging.Footnote ⁶⁴ During the drafting of the Statute of the PCIJ, members of the Advisory Committee of Jurists referred to various qualifiers, including ‘authors whose opinions have authority’, ‘qualified author’, and ‘the best qualified writers’,Footnote ⁶⁵ but each raises questions of their own. Although it might be said that a particular individual is surely a most highly qualified publicist, ultimately, the moniker is subjective.Footnote ⁶⁶ In practice, the work of many different publicists has been utilized and the focus tends to be more on the quality of a particular teaching than the standing of a particular author.

Ultimately, the category of publicist can be broken down into different types—State-empowered entities, expert groups, and ordinary publicists. It is important to do so as the precise influence of teachings of publicists varies depending on the particular type of publicist as well as the specific type of teaching. To teachings we now turn.

A. Digests

International law digests are essentially collections of materials on international law that are selected, edited, arranged and subjected to analysis. Historically, digests have proven influential in the development of international law. Courts have not infrequently utilized them for their evidence of State practice and the views of States. Government legal advisors also turn to them for precedents.Footnote ⁷²

Particularly influential digests of international law were produced in the United States, authored successively by Wharton, Moore, Hackworth, and Whiteman.Footnote ⁷³ Digests were also produced in other States, such as Clive Parry's A British Digest of International Law (1965). The complete titles of the works are revealing. For example, the full title of Moore's Digest is: A Digest of International Law as embodied in Diplomatic Discussions, Treaties and other International Agreements, International Awards, the Decisions of Municipal Courts, and the Writings of Jurists and especially in Documents, Published and Unpublished, Issued by Presidents and Secretaries of State of the United States, the Opinions of the Attorney-General, and the Decisions of Courts, Federal and State. These works thus provide the evidence of State practice to which the US Supreme Court in the Paquete Habana was referring.

However, many of these digests were not composed purely of State practice. Rather, the practice was placed in context and accompanied by analysis. Moore's Digest, for example, traced the history of a particular issue, quoted extracts from leading documents, and elucidated the relevant principles. Moore, himself, made the point that ‘while the work bears the name and the character of a digest, it also contains much that is of an expository nature, in the form suitable to a treatise’.Footnote ⁷⁴ Accordingly, some digests were, in fact, part-digest and part-treatise. As Reisman notes:

In selecting and reproducing ‘chunks of documents’, the author of the digest necessarily has to make a choice as to what to include and what to exclude: ‘[d]ocuments and incidents that could be extremely relevant to subsequent practice may be suppressed or reproduced so selectively that they give the reader quite a different impression of what transpired’.Footnote ⁷⁶ The use of different documents, different excerpts, or different arrangements could paint a different picture. Accordingly, the role of the digest writer is important. Indeed, O'Connell goes so far as to say that ‘a mass of historical evidence is inarticulate until it is organised’ and that ‘it is the intellectual construction rather more than the observation and recording of what are assumed to be facts that gives method and vitality to the growth of rules’.Footnote ⁷⁷

By the twenty-first century, the digest, or its equivalent, was of a rather different sort. The digest compiles the practice, statements and views of the relevant State, but with limited to no context, comment, or analysis. They are more in the nature of a compilation of key documents than a digest in the sense of that described by Moore. This is true of many compilations, including the sections on practice in the various year books of international law.Footnote ⁷⁸ Context and comment tends to be lacking.

It has thus been suggested that it ‘made some sense’ to use the writings of scholars ‘as a source of international law’ ‘during the nineteenth century positivist heyday of international law, when scholars did the hard work of collecting international practices’ but that it makes ‘little sense today’ where scholarship in certain fields such as international human rights law is characterized by ‘normative rather than positive argument’.Footnote ⁷⁹ However, some digests are put together by State legal advisors rather than scholars. Furthermore, since the heyday of the legal digest, monographs on specialized areas of international law have become commonplace,Footnote ⁸⁰ and these often do canvass the relevant State practice. The collection and analysis of State practice thus continues in the teachings of publicists, but not in the form of the digest. Furthermore, international law scholarship has long contained descriptive as well as normative argument.Footnote ⁸¹

In any event, teachings of publicists are influential not only for their evidence of State practice. The US Supreme Court in Paquete Habana itself acknowledged another reason to turn to the writings of publicists, namely for ‘trustworthy evidence of what the law really is’.Footnote ⁸² Writings also ‘give shape and order to the disparate strands that make up international law’.Footnote ⁸³ With the growth of the field and the increase in the number of judicial decisions on the subject, writings serve to order, systematize, and analyse what is taking place. And as Lauterpacht observed in 1956, ‘[w]hile the availability of other sources of information may have altered the nature of the function of “publicists” as recorders of the practice of States, their part as its qualified interpreters cannot always be disregarded’.Footnote ⁸⁴

B. Treatises and Textbooks

Also influential historically were the major treatises on international law. In the nineteenth century, the treatise formed ‘the core of learning on international law’.Footnote ⁸⁵ A treatise is defined by its method: ‘it begins with a definition of the subject matter, and proceeds by logical and systematic stages to cover the whole field’.Footnote ⁸⁶ To recall Reisman once again:

As is well known, the founding texts of Grotius,Footnote ⁸⁸ PufendorfFootnote ⁸⁹ and VattelFootnote ⁹⁰ have been hugely influential. Later, the major works by Bluntschli,Footnote ⁹¹ Fiore,Footnote ⁹² Hall,Footnote ⁹³ Halleck,Footnote ⁹⁴ Oppenheim,Footnote ⁹⁵ Pradier-FodéréFootnote ⁹⁶ and Wheaton,Footnote ⁹⁷ among others,Footnote ⁹⁸ were all heavily utilized. For example, Oppenheim's International Law has been described as ‘quoted and relied upon by governments and domestic and international tribunals, often as the final authoritative statement of international law on a particular point’,Footnote ⁹⁹ and as ‘by common consent the outstanding and most frequently employed systematic treatise on the subject in the English-speaking countries’.Footnote ¹⁰⁰

In certain jurisdictions, such as the United States, treatises have fallen into decline. In 1987, in a review essay entitled ‘The Case of the Vanishing Treatises’, Franck famously asked ‘[w]here have all the treatises gone?’.Footnote ¹⁰¹ Franck put this down to changes in legal theory and ‘legal nihilism’.Footnote ¹⁰² It has also been suggested that the treatise has been ‘superseded’.Footnote ¹⁰³ On this view, the treatise is ‘no longer the most efficient or reliable vehicle for the compilation and dissemination of the positive law’.Footnote ¹⁰⁴ By contrast, in other jurisdictions, such as France and the United Kingdom, treatises that cover the breadth of international law continue to be published.Footnote ¹⁰⁵ And changes in authorship of ‘venerable texts’, such as the Précis Dalloz and the Collection Thémis of the Presses Universitaires de France, constitute ‘a major event’.Footnote ¹⁰⁶

There is frequently overlap between the leading treatises and the favoured textbooks of the day. Although there are differences between treatises and textbooks—‘there are differences of function (a textbook addresses students) and reach (a treatise claims comprehensiveness)’Footnote ¹⁰⁷ —there is no clear distinction between the two.Footnote ¹⁰⁸ This is evident from a consideration of the major English language treatises and textbooks. Oppenheim wrote the first edition of the text now known by his name as ‘an elementary book for those who are beginning to study International Law. It is a book for students written by a teacher.’Footnote ¹⁰⁹ Its title, however, indicates that it is a treatise. Over time, it has morphed into a practitioner work, with Fitzmaurice describing the eighth edition as ‘the practitioner's Bible’;Footnote ¹¹⁰ and Jennings and Watts, the authors of the ninth edition, indicating that they preserved Oppenheim's ‘status as a practitioner's book, rather than as an academic treatise’.Footnote ¹¹¹ Other works have been written for both students and practitioners. In the first edition of Starke's Introduction, for example, the author notes that he was writing for ‘intending international officials, diplomatic recruits, and University students’.Footnote ¹¹² Brownlie wrote his Principles of Public International Law for ‘ambitious students’,Footnote ¹¹³ but others have testified to its utility to practitioners.Footnote ¹¹⁴ It is considered a textbook and a treatise.Footnote ¹¹⁵ How it is perceived depends on the reader.Footnote ¹¹⁶ The second edition of Hall's Treatise on International Law is designated a treatise;Footnote ¹¹⁷ but Pearce Higgins, in the eighth edition, writes that the additions he has made should make it ‘of greater assistance to students’.Footnote ¹¹⁸ Other books have been written very much as practitioner works.Footnote ¹¹⁹

The influence of textbooks should not be underestimated. Judicial decisions tend to refer frequently to the leading textbooks of the day, as do government legal advisors.Footnote ¹²⁰ As will be seen, the structure, substance and views set out in a textbook can influence generations of students.Footnote ¹²¹ Textbooks thus have the potential to exercise considerable influence.

C. Monographs and Edited Collections

Just as the age of the digest has passed, so, too, has the age of the treatise.Footnote ¹²² By the start of the twenty-first century, the most prevalent form of scholarship was the monograph, the edited collection and the journal article. Barely a day goes by without the publication of a monograph, an edited collection, a handbook, a guide, a companion, a festschrift, or a variant thereof.Footnote ¹²³ A number of reasons explain this state of affairs, including the digital age and the relative ease of researching and writing;Footnote ¹²⁴ the growth of the field; increasing specialization;Footnote ¹²⁵ the increase in the number of individuals working in the area, in academia, in practice, and as students; the related increase in the number of conferences and workshops that take place; the increase in the number of publishing houses and law journals;Footnote ¹²⁶ and career reasons,Footnote ¹²⁷ such as the ‘publish or perish’ phenomenon.

Treatises were not designed to be read from cover to cover. They were more encyclopaedia and less monograph.Footnote ¹²⁸ Their value lay in being able to dip in and out of them to access information on an as needed basis. By contrast, monographs and journal articles are designed to be read cover to cover, although, in the case of monographs, this perhaps happens more in theory than in practice.Footnote ¹²⁹

A monograph enables ‘a rigorous and extensive presentation of arguments, sustained potentially over a broader set of areas, and placed in context with other important issues, both within and outside of a discipline’.Footnote ¹³⁰ It will include ‘detailed discussion on trends and contradictions in jurisprudence, comprehensive accounts of research or scholarship on a given topic, and/or presentations of valuable and interesting historical or statistical data’.Footnote ¹³¹ A monograph tends to focus on one topic, or one specific area of law, and subjects that topic or area to comprehensive analysis. Monographs can serve as repositories of State practice, as ‘trustworthy evidence of what the law really is’,Footnote ¹³² and the source of new ideas. Much turns on the individual monograph and the goals of the particular author.

D. Commentaries

Although a subset of the previous category, there is a special place for Commentaries in the teachings of publicists. Often, a treaty provision is rather succinct and its meaning is difficult to discern. A teaching that explores the meaning of the provision looking into its object and purpose, situating it in context, considering its drafting history, analysing subsequent practice, and canvassing relevant literature—can prove influential. It is particularly in the interpretation of the law that Commentaries have proven valuable.

The ICRC Commentaries on the Geneva Conventions under the general editorship of Jean Pictet, and the ICRC Commentaries on the Additional Protocols, are a good example of this. They have been described by courts and tribunals as ‘particularly valuable’,Footnote ¹³³ even ‘authoritative’.Footnote ¹³⁴ The manner in which the ICRC Commentaries have been used is even more revealing than the terminology used to describe them. The Commentaries are cited and quoted extensively in certain judgments.Footnote ¹³⁵ In other cases, the Commentaries are treated as determinative. For example, according to the Martić Trial Chamber, on one particular issue, the ICTY Appeals Chamber in Blaškić ‘based its holding on the ICRC Commentary’.Footnote ¹³⁶ Likewise, in the Stakić Appeal Judgment, the Appeals Chamber noted that ICTY trial judgments on a particular issue ‘rely for their authority on a statement in the ICRC Commentary’.Footnote ¹³⁷

The weight given to the ICRC Commentaries is thus considerable. This is particularly notable as the Commentaries did not in fact represent the official views of the ICRC.Footnote ¹³⁸ The foreword to the 1952 Commentary on the First Geneva Convention, for example, provides that, ‘[a]lthough published by the International Committee, the Commentary is the personal work of its authors’.Footnote ¹³⁹ Likewise, the Foreword to the ICRC Commentary on the Additional Protocols indicates that the ICRC viewed the Commentary ‘above all as a scholarly work, and not as a work intended to disseminate the views of the ICRC.’Footnote ¹⁴⁰ Over time, and in practice, the Commentaries have come to be seen as reflecting the ICRC's view.

Commentaries, generally, tend to be of particular use to courts. For example, Christoph Schreuer's The ICSID Convention: A Commentary has been described as having achieved ‘a unique position’ in international investment law, being cited in more than 60 awards.Footnote ¹⁴¹ Likewise, Bothe, Partsch and Solf's Commentary is regularly cited by international criminal courts and tribunals, and, at times, is given the same authority as the ICRC Commentary.Footnote ¹⁴² As Thirlway notes, ‘there are a number of scholarly publications in specialized fields that have obtained the status of being the book on that particular subject, cited by counsel and by tribunals with almost the authority of one of the three sources of international law.’Footnote ¹⁴³

E. Journal Articles

The journal article is the short form of the monograph. Periodicals on international law were established, among other things, in order to make international law accessible to a wider audience. The Foreword to the International Law Quarterly, the predecessor to this Quarterly, stressed the need to increase awareness of international law: ‘it is to be hoped that the foundation of this new Quarterly will bring home to a wider section of the community the part which International Law has to play in the modern world, and will lead to an ever increasing knowledge of the rules which it prescribes, so as to strengthen in the international sphere the forces that make for justice through compliance with the law’.Footnote ¹⁴⁴

Some years earlier, in the ‘Prospectus’ for the American Society of International Law, the absence of an English language periodical devoted to international law was noted, as was the importance of a means of communication between jurists and students and the scientific and the lay public.Footnote ¹⁴⁵ The ‘goal’ of the American Journal of International Law was to ‘attract readers among legal academics, scholars of international relations and history, government officials, members of military and diplomatic establishments (from both the United States and abroad), staffs of international institutions and nongovernmental organizations, members of the bench and bar, and businessmen and others involved in international commerce and affairs’.Footnote ¹⁴⁶ This is reflected in the first article in the first issue of the American Journal. Entitled ‘The Need of Popular Understanding of International Law’, the author, Elihu Root, noted that ‘[t]he increase of popular control over national conduct, which marks the political development of our time, makes it constantly more important that the great body of the people in each country should have a just conception of their international rights and duties’.Footnote ¹⁴⁷ Root went on to note that ‘[o]ne means to bring about this desirable condition is to increase the general public knowledge of international rights and duties and to promote a popular habit of reading and thinking about international affairs’.Footnote ¹⁴⁸ Right from the outset, the American Journal saw policymakers,Footnote ¹⁴⁹ and lay readers,Footnote ¹⁵⁰ as a key part of its audience.

English language international law journals of the period were thus designed to convey information on international law to a wide audience. This necessarily had an impact on the form and content of the periodical. They were published at regular intervals and contained pieces of digestible length. The precise content of the periodical differed from publication to publication, but they tended to contain scholarly articles of differing lengths, recent developments, reviews of the case law, consideration of State practice, and reviews of recent publications. Nonetheless, the mixed audience meant that pieces could not always serve both the specialist and the lay reader.Footnote ¹⁵¹

International law journals published since that time share the same format but differ in focus. For example, the African Journal of International and Comparative Law ‘is meant to provide a forum in which African lawyers, scholars and Africanists elsewhere may freely exchange their ideas, regarding International and Comparative Law generally and as they relate to Africa in particular’.Footnote ¹⁵² The Asian Journal of International Law ‘hopes to provide a forum for debating the world of international law and institutions’ and ‘aspires to cultivate a conversation between scholars, practitioners and policy-makers located in or interested in Asia’.Footnote ¹⁵³ And the Chinese Journal of International Law was established to enable the international community to access the views and materials of China, to promote mutual understanding, and ‘to inform decision-making in international law and relations and promote research and teaching in China’.Footnote ¹⁵⁴

As is evident from the goal of each of these journals, the accessibility of a teaching is important. A variety of factors influence accessibility, including the language in which the teaching is written, whether it is available electronically, and whether it is freely available. At a practical level, teachings in one of the more widely-spoken languages, or in multiple languages, will be accessible to a larger audience than writings in a language that are spoken in only a handful of States. This has influenced the language in which particular journals are published, and the language in which authors publish their work.Footnote ¹⁵⁵ For example, the International Review of the Red Cross switched from French to English, but publishes annual selections in Arabic, Chinese, French, Russian and Spanish.Footnote ¹⁵⁶ Journals such as the Chinese Journal of International Law are published in English even though they are based in States in which the native language is not English. Indeed, the lack of an English language journal of international law emanating from China was a reason for its creation.Footnote ¹⁵⁷ This attracts a broader readership and makes use of the articles more likely. Accessibility of teachings is important also in the sense of their being readily locatable. If a teaching is difficult to access, it is less likely to be used. With this in mind, and fitting with its intended readership, the American Journal ‘has always received preferential distribution within the U.S. Department of State and to U.S. embassies abroad’.Footnote ¹⁵⁸ Other journals are freely available online. The changing nature of research also affects the way in which teachings are found. Today, teachings are going to be more widely read if they are available electronically and if they are available without charge.

F. Blog Posts

A relative newcomer to the category of teachings, and arising out of the digital age, is the blog post. Blogs serve a variety of purposes, including informing readers of recent developments and subjecting those developments to critical analysis.Footnote ¹⁵⁹ They allow authors to test out their ideas; and enable readers to be reached more quickly than the print format allows, for example providing quick reactions to a judgment or event, or conducting symposia on recently published work. If they allow comments to be made on posts, blogs also enable a relative dialogue to take place.

There has been some discussion as to whether the quality of a blog post is less than that of a published article as they tend not to undergo blind peer review.Footnote ¹⁶⁰ One danger is that blogs ‘make possible the repeated and systematic broadcast of non-expert opinions, opinion that can then be picked up and amplified by other non-expert blogs’.Footnote ¹⁶¹ However, that is more a critique of particular blogs, particular authors, or particular blog posts, rather than of the medium of blogging itself.

From the perspective of influence, one of the key features of blog posts is their potential to reach a broader audience than other legal writings. As with legal periodicals when they first emerged, blogs are designed to reach specialists as well as lay readers and practitioners as well as academics.Footnote ¹⁶² Many readers, including journalists and lay readers, as well as academics and practitioners, might be willing to read a 500-word blog post rather than a 10,000-word article on the same issue. And blog posts do have influence.Footnote ¹⁶³

Ultimately, there are a number of different types of teachings, including digests, treatises, textbooks, monographs, commentaries, journal articles and blog posts. Other categories, such as casebooks, and oral teachings, for example lectures and presentations, could be added.Footnote ¹⁶⁴ Different categories of teachings serve different purposes and appeal to different audiences. The idea that teachings of publicists should only identify and analyse State practice is thus to privilege a very particular type of writing and to overlook the multiple audiences of legal writings.

A. Actors Being Influenced

The actors that receive the teaching are the various actors in the community of international lawyers. They thus include States, courts and tribunals, international organizations, treaty bodies, and so on. They also include other publicists, be they State-empowered entities, expert groups, or ordinary publicists. The precise composition of the community of international lawyers varies depending on the subject matter at issue. Indeed, rather than a single community of international lawyers, there are, in fact, multiple communities of international lawyers.Footnote ¹⁷¹ The community comprises all those who have expertise in the relevant issue. For example, insofar as a matter of international human rights law is concerned, the community would include States, regional human rights courts, UN human rights treaty bodies, special procedures, human rights non-governmental organizations, and academics.Footnote ¹⁷² Depending on the specific issue under consideration, it might also include other actors such as general public international lawyers, trade lawyers, or military lawyers.

Each of the actors in the community of international lawyers uses teachings of publicists. States utilize teachings as ‘shortcuts’ given that they often have to act under time pressure.Footnote ¹⁷³ Government legal advisors turn to digests for precedents, for example,Footnote ¹⁷⁴ relying on teachings of publicists instead of undertaking the first-hand work themselves. On one view, then, ‘international law is made by the legal advisers of Foreign Offices … depending very much on learned authors’.Footnote ¹⁷⁵ The teachings of publicists are thus used behind the scenes. They are also used publicly. Government legal advisors and other counsellors rely on teachings of publicists to support their arguments and lines of thinking.Footnote ¹⁷⁶ They are referred to in legal opinions,Footnote ¹⁷⁷ and in manuals.Footnote ¹⁷⁸ States refer to teachings in their pleadings before courts and tribunals. Teachings also influence States’ positions, for example, in negotiations with other States.

Teachings are also used by courts and tribunals, both international and domestic. This is particularly evident from the judgments of courts and tribunals, in which teachings are cited. The citation of teachings is a matter that will be discussed further below.Footnote ¹⁷⁹

Publicists are also part of the community of international lawyers; and publicists influence other publicists. The tendency of publicists to refer extensively to the writings of other publicists in support of their arguments has been criticized.Footnote ¹⁸⁰ Indeed, at times, it can prove self-referential and self-serving. And many teachings of publicists seem to be read only by other publicists.Footnote ¹⁸¹ At the same time, the potential influence of a shared view in the writings of publicists should not be underestimated. If the view of one highly regarded publicist is X, the fact that that view is shared by other highly regarded publicists can make a difference. As Chancellor Kent put it: ‘in cases where the principal jurists agree, the presumption will be very great in favour of the solidity of their maxims’.Footnote ¹⁸² The influence of a shared view amongst publicists can be seen in the ICJ's references to ‘all or nearly all writers’,Footnote ¹⁸³ or ‘general opinion’,Footnote ¹⁸⁴ as well as its reference to splits amongst publicists.Footnote ¹⁸⁵ As with the work of expert groups, it becomes more difficult to argue that the legal position is Y if publicists generally are of the view that the position is X and have explained why this is the case. That being said, publicists are only part of the community of international lawyers. Thus, even if there is a shared view among publicists, that view needs to be considered alongside the views of other actors in the community of international lawyers, in particular, States.

The different categories of publicist should also be kept in mind when considering the influence of publicists on other publicists. The influence of one category of publicist on another, such as the influence of an individual publicist on the ILC, is important. For the ILC then develops the points made in the doctrine and uses the doctrine to shape its commentary, which can in turn influence, or even become, a later treaty provision. In this way ‘“teachings” are … further developed by “teachings”’.Footnote ¹⁸⁶

B. Interaction between Teachings and Actors

The second key element for assessing influence is the interaction between the teaching and the relevant actor. It is this interaction that is the most difficult element to determine. Much of the interaction takes place behind closed doors, making it difficult to establish which particular teachings have been read. Even when that can be determined, for example, by establishing which teachings were included in bundles for judges as part of case files, or by tracing downloads of articles to particular servers in government, it is difficult to determine actual influence. Actors often do not explain their thought processes; and reading a teaching is not the same as being influenced by it, though in the broadest sense, we are all products of our experiences. Thus, signifiers of influence have to be identified and proxies for influence have to be used.

C. Non-Linearity of Influence

The idea of influence was captured above in the sense of ‘where something from A flows into and thereby affects B’.Footnote ²¹³ However, the relationship between writings and actors within the community of international lawyers is not always as neat or as linear as this would suggest.

The role of the publicist within the community of international lawyers is multifaceted. A publicist might set out his or her view of the law in a writing and then adopt the same position when appointed as counsel, judge, or arbitrator. For example, there is a certain similarity between Antonio Cassese's view, expressed in his academic writings, that there is crime of terrorism in customary international law and the Interlocutory Decision of the Special Tribunal for Lebanon of which he was the primary author.Footnote ²¹⁴ In the investment context, an individual might be appointed an arbitrator, or not be appointed as an arbitrator, in part, because of the views he or she has previously expressed in teachings. And the position taken in the teaching might later be reflected in the arbitral award. In each of these cases, the influence of the pronouncement comes from its status as a judicial decision or an arbitral award. Nonetheless, it can be traced back to the position first expressed when the individual was a writer.

The multifaceted nature of the publicist operates also in different ways. An individual might make the very same point in two different capacities—for example, as an individual publicist and as a state-empowered entity—but it is the statement in the capacity as a state-empowered entity that tends to be taken up and preferred. For example, it is Eide's report on the right to food in his capacity as Special Rapporteur that tends to be referenced, rather than his book chapter.Footnote ²¹⁵ In the case of the right to development, the idea was first set out in a writing of a publicist. However, it was the author's role in the Commission on Human Rights that enabled him to take the idea further.Footnote ²¹⁶ In other instances, an employee of a State-empowered entity might first publish a writing in his or her individual capacity before the entity later adopts the writing as its official position. This allows for others to react to the writing and allows the entity to benefit from the reactions prior to making its official position known.Footnote ²¹⁷

Teachings, particularly those of State-empowered entities, are also important for their internal influence and external effects. The ICRC, for example, uses its writings as reference points when it engages in discussion with, or provides training for, States. Likewise, in a number of States, UNHCR carries out refugee status determinations. When it does so, it utilizes its Handbook and other UNHCR documents.Footnote ²¹⁸ For the persons concerned, the writings of UNHCR can prove determinative of an issue.

Publicists are also influential outside specific writings. They might be consulted on their views, or they might provide advice, formal or informal, to a government or another member of the community of international lawyers. There is a long history of international lawyers combining teaching and practice. This was true of many of the founding fathers, such as Gentilis, Grotius and Vattel;Footnote ²¹⁹ and continues today. Others combine teaching and government service or move back and forth between the two. They serve as external advisors, in-house lawyers and experts. They act as counsel, consultants and form part of a State's delegation at diplomatic conferences. Former students not infrequently consult their teachers to seek their views on particular matters. All this tends to be on the basis of the broader reputation of the publicist and their body of work rather than on a single writing, or on the basis of personal or professional connections. The influence of the publicist in this capacity can prove particularly significant. Mention can be made, for example, of Lauterpacht's contribution to the categorization of crimes in Article 6(c) of the Charter of the International Military Tribunal at Nuremberg and, specifically, the inclusion of crimes against humanity.Footnote ²²⁰ The direct contribution to the development of the law comes from the other member of community rather than the publicist in their role as advisor. However, the publicist exercises a behind-the-scenes influence. The examples also demonstrate the close relationship between different members of the community of international lawyers.

The non-linearity extends to teachings themselves. Publicists are not always consistent in what they write. A publicist might change his or her mind on a matter, recanting an earlier position. Those who have taken up the initial view of the publicist might also recant their position or they might retain that view. Equally, the same publicist might publish one view as a matter of lex ferenda, in an effort to change the law, while publishing a different view as a statement of lex lata. For example, Thomas has observed that, in a note in the British Year Book of International Law, FA Mann argued for a particular understanding of fair and equitable treatment, one that was different to prior formulations of the standard.Footnote ²²¹ By contrast, in his monograph on The Legal Aspects of Money, Mann took a view that was consistent with the previously understood position.Footnote ²²² Thomas puts the difference down to ‘the fact that in his treatise Mann was attempting to state de lege lata, as opposed to de lege ferenda’.Footnote ²²³ Yet, Thomas notes that it is Mann's British Year Book note that was picked up, and used, in the literature and by certain investment tribunals, rather than the views that he expressed in The Legal Aspects of Money.Footnote ²²⁴

The influence of teachings is also a multi-stage process and does not stop once A has an impact on B. Teachings are particularly influential when there is a gap or uncertainty in the law, and that gap or uncertainty needs to be filled. Thus, they are used particularly frequently in newer areas of the law such as international criminal law and international investment law. Early case law in these areas tends to be full of references to writings. Over time, however, writings tend to be used less, with the early case law being cited for the relevant proposition instead of the writings from which the early cases drew. For example, in the investment context, the arbitral tribunal in Salini ‘employed a checklist of criteria’ that was ‘nearly identical to’ the features of ‘investment’ contained in Schreuer's Commentary.Footnote ²²⁵ Over time, however, it is Salini that has become the key reference point on the issue rather than Schreuer's Commentary. Thus, one arbitral tribunal has observed that ‘[t]he factors considered in Salini are widely accepted as the starting point of an ICSID tribunal's analysis of whether there is an “investment” within the meaning of Article 25(1)’ of the ICSID Convention.Footnote ²²⁶ Indeed, it has become known as ‘the Salini test’.Footnote ²²⁷ The example is particularly instructive given that Schreuer's Commentary was not in fact cited by the arbitral tribunal for the features of investment, though it was cited elsewhere in the award, reinforcing the point that lack of citation cannot be equated with lack of influence. Furthermore, the way in which the features of investment have been used, namely moving away from a ‘descriptive list … towards a set of mandatory legal requirements’, has led Schreuer to write that ‘[t]he First Edition of this Commentary cannot serve as authority for this development’.Footnote ²²⁸ A teaching can thus take on a life of its own and be used in a way that is very different from that which the author intended.

The move from the citation of a teaching to the citation of a judicial decision or arbitral award reveals the relative weight of writings as compared with judicial decisions. It also reinforces why citation counts can be misleading. Indeed, ‘[w]hen the influence of a work becomes particularly profound, citations to it may decrease’.Footnote ²²⁹ The point is not limited to judicial decisions. If the issue of exclusion zones in the law of armed conflict at sea is recalled, the writing of an individual publicist influenced the work of an expert group and the work of the expert group influenced States’ military manuals. Today, reference is made to the State military manuals and the San Remo Manual rather than the Fenrick article which inspired them. Furthermore, as time goes by, the concept alone might be referenced, without an indication of where it originated—such as the idea of ‘instant custom’.Footnote ²³⁰ Alternatively, the concept might appear alongside the name of the originator but without reference to a particular writing—such as the ‘Baxter paradox’.Footnote ²³¹ The irony is, then, that ‘[t]he ideas of the greatest innovators are often considered not to require explicit citation because they have become embedded in our intellectual culture’.Footnote ²³²

D. Limitations on the Influence of Writings

The community of international lawyers is thus a necessary part of determining the influence of teachings of publicists. However, the community can deliberately or subconsciously privilege certain teachings and limit the use of others. Membership of the community of international lawyers ‘entails the internalisation of a common set of background assumptions and disciplinary rules which are accepted by other international lawyers as valid’.Footnote ²³³ One consequence of this is that teachings will have to speak the language of the community and accept its strictures in order to be influential. Teachings that do not speak the language, or which are considered disruptive, might be overlooked, dismissed, pigeonholed, or otherwise not valued. This is particularly true of work that challenges mainstream thinking or seeks to overturn orthodoxies.

Reactions to the presentation of a paper by Charlesworth, Chinkin and Wright, which led to their groundbreaking article, ‘Feminist Approaches to International Law’,Footnote ²³⁴ is a good example of the potentially constricting effect of the community of international lawyers. Their account of the reactions is worth quoting in full:

Another example of the potentially restrictive effect of the community of international lawyers relates to the writings on third world approaches to international law (TWAIL).Footnote ²³⁶ Anghie and Chimni have observed that ‘TWAIL has … found it difficult to assert itself in an institutional setting which, when it is not generally uncomprehending of TWAIL's history and its aims, seeks to incorporate TWAIL into a familiar geography of alliances and rivalries’ and have noted further that ‘scholarship cannot be separated from the institutional resources – law schools, journals, publishers – that enable its production’.Footnote ²³⁷

Part of the reason for this is that the community of international lawyers serves as the gatekeeper and has the potential to value only those teachings that are in its mould. Accordingly, the success of a publicist's argument will be influenced by ‘his technical prowess in balancing his political agenda with the vocabulary and form acceptable to other actors who also engage with international law’.Footnote ²³⁸ This, in turn, has the potential to stymie the influence of the most dissonant thinking, to make it more difficult to overturn orthodoxies, and to stifle radically different voices and styles. Aspects of the discipline, such as peer review and the growing importance of citation counts, reinforce the constraints and also militate against radical challenges to orthodoxies.

Alternatively, the community of actors can become fragmented, with chasms created whereby teachings no longer speak to certain members of the community. Teachings then prove to be of interest and use only to subsets of the community and there might be relatively little substantive engagement between the various subsets. For example, writing in 2005, Charlesworth observed that ‘looking at the major writings in international law and theory over the past decade, it is very hard to detect any real attempt to engage with feminist theories of international law, or indeed with any outsider perspectives’.Footnote ²³⁹ And in the United States, a split has emerged between writings of publicists and the judiciary, with Chief Justice Roberts noting that law review articles are not ‘particularly helpful for practitioners or judges’.Footnote ²⁴⁰ In this way, writings of publicists can lose some of their influence.