V The Subsidiary Sources

Subject(s):

Judicial decisions

This chapter considers subsidiary sources of international law, i.e. judicial decisions and ‘the teachings of the most highly qualified publicists of the various nations’. A judicial decision, in almost all cases, by definition adds something to the corpus of law on the subject of the dispute: if the law had been crystal clear before the decision, it is reasonable to suppose that the case would never have been fought. On the other hand, it has been suggested that ‘the teachings of the most highly qualified publicists of the various nations’ would only carry weight in so far as they referred back to one of the three principal sources. However, there is now resistance to this view in some scholarly quarters. The suggestion being made is that doctrine may be constitutive of international law.