This blog is written by Shubhangi Jawaharlal Baranwal, a Third-year law student of K. C. Law College, University of Mumbai

INTRODUCTION

International public law is a sophisticated system of principles, treaties, customs, and practices regulating the interactions of states and various other international actors. The sources of international law, according to Article 38 of the Statute of the International Court of Justice (ICJ), are treaties, customary international law, general principles of law, judicial decisions, and “the teachings of the most highly qualified publicists.” Juristic writing, often viewed as not as important as some of the other sources, is essential for the development and interpretation of international law. This work will focus on the significance of juristic writing as a source of international law and the main contributions of juristic writing to the general legal literature.

THE NATURE AND ROLE OF JURISTIC WRITING

Juristic writing is an important source of international law. These may include scholarly opinions, legal commentaries, and treatises written by eminent scholars and legal experts. Regarding this, one should also note that they are not recognized as binding law, but are a significant means of interpreting and determining the relevant legal work of international legal norms. These writings can become a very powerful and important means of international law, especially in cases when legal norms are not developed or controversial.

Unlike other sources of international law such as treaties and custom, juristic writing does not derive from state consent or practice. Instead, they are derived from the scholastic reading of legal principles. Legal scholars thus examine laws, court rulings, and state practice to determine what norms of international law exist. These works can act as a bridge between abstract legal principles and the nuts and bolts of how those laws operate in practice to help judges resolve disputes that come before them.

HISTORICAL DEVELOPMENT

Juristic writings began to have an impact on international law with the works of early scholars such as Hugo Grotius, who is most commonly referred to as the "father of international law." In his work, De Jure Belli ac Pacis (On the Law of War and Peace), Grotius set the framework for modern views of state sovereignty and just war theory. Even though his ideas were not binding, they had a significant impact on customary international law in the centuries that followed.

In like manner, writers like Emmerich de Vattel, who wrote La Droit Des Gens (The Law of Nations) contributed crucial elements to the duties of states and conduct about diplomacy. Though these writings were not legally binding on states, they were among the key works cited by diplomats, jurists, and international courts in their interpretation of legal norms. In their judgments, the ICJ and other international tribunals are known to make frequent reference to the work of leading legal scholars to endorse their line of reasoning or explain intricate areas of law.

THE ROLE OF JURISTIC WRITINGS IN MODERN INTERNATIONAL LAW

In modern international law, juristic writing continues to play a significant role in the evolution of the law and this is particularly true for areas of law that are either developing rapidly, such as environmental law, human rights, and international criminal law; or where aspects of the law are highly complex. The fact is that with the increasing complexity and global reach of contemporary international law juristic writing provides something like an essential key or cipher to unlock its workings. Legal writers and legal scholars also provide an alternative perspective on treaties, state practice, and decisions of international courts that may be helpful to judges looking beyond government pronouncements on what constitutes customary norms.

For example, in Paquete Habana case[1], Justice Gray observed: "Where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages, and, as evidence of these, to the works and commentators, who by years of labour, research, and experience have made themselves peculiarly well acquainted with the subjects which they treat. Such works are resorted to by judicial tribunals not for the speculations of their authors concerning what the law ought to be but for trustworthy evidence of what the law is"[2].

LIMITATIONS OF JURISTIC WRITING

Juristic writings are significant but have constraints. They are not primary law sources, which means they lack the authority of treaties or customary law. These writings can only be used as a last resort, specifically when other sources mentioned in Article 38 cannot solve the dispute at the Court. Additionally, the subjective nature of legal scholarship can lead to varying viewpoints among scholars, and states are not obligated to follow the views of publicists. The effectiveness of juristic writings also hinges on the scholars' reputation and credibility, so only those highly regarded are deemed “qualified publicists.”

Another drawback is the variety of legal traditions. International law comes from different legal systems, such as civil law, common law, and religious law. Juristic writings, particularly from one legal tradition, might not adequately reflect the nuances of others. This diversity can sometimes restrict the broad application of juristic interpretations.

CONCLUSION

Juristic writings are not primary sources of international law but are useful tools for interpreting and developing international legal norms. From Grotius to contemporary scholars legal writings have shaped the way states and courts understand and apply international law. By providing scholarly opinions and critical analysis juristic writings are secondary but influential sources of international law helping to clarify ambiguities and guide legal decision-making. But their non-binding nature and reliance on scholarly consensus require caution in their use. Ultimately juristic writings will continue to play a vital role in the evolving landscape of international law providing insights that will enhance the understanding and application of legal principles globally.

REFERENCES

1. The Paquete Habana, 175 U.S. 677 (1900)

2. Dr. Ashok K. Jain, “Public International Law & Human Rights” (3rd Edition, Ascent Publications, 2011)

3. Library of Congress, https://guides.loc.gov/public-international-law/sources-of-law

4. Mohd Aqib Aslam, “Sources Of International Law An Overview” Legal Services India, https://www.legalserviceindia.com/legal/article-2194-sources-of-international-law-an-overview.html

Aditya Agrawal, “Contribution of the works of Jurists/Scholars as a source of Public International Law” Legal Services India, https://www.legalserviceindia.com/legal/article-5039-contribution-of-the-works-of-jurists-scholars-as-a-source-of-public-international-law.html

[1] The Paquete Habana, 175 U.S. 677 (1900)

[2] Dr. Ashok K. Jain, Public International Law & Human Rights (3rd Edition, Ascent Publications, 2011)