2. Subsidiary Sources

What are the subsidiary sources? (JT)

• Judicial decisions; and
• Teachings of the most highly qualified publicists of the various nations. [ICJ Statute, art. 38(1)(d)]

While the primary sources create law, the subsidiary sources constitute evidence of what the law is.

There is no stare decisis: Case law is considered only “subsidiary means.” Even the decisions of the ICJ itself do not create binding precedent since it only binds the parties and in respect of the particular case. (ICJ Statute, art. 59).

Teachings of publicists may include the work of organizations such as the International Law Commission (established by UN General Assembly to initiate studies and make recommendations for the purpose of encouraging the development of international law and codification), the Institut de Droit International, the International Law Association, a multinational body, the (Revised) Restatement of Foreign Relations Law of the United States, and the annual publication of the Hague Academy of International Law. (Bernas, Public International Law, 2009).

a. Treaties

What are the secondary sources?

• Judicial decisions
• Teachings of the Most Highly Qualified Publicists (ICJ statute, art. 38).

d. Judicial decisions