A New Influence of Legal Scholars? The Use of Academic Writings at International Criminal Courts and Tribunals

Practice theory and change in international law: theorizing the development of legal meaning through the interpretive practices of international criminal courts

“…Despite this formal rule, in practice, international courts including the ICJ frequently refer to their own and potentially each other's decisions (e.g. Manley 2016; Alschner and Charlotin 2018; Stappert 2018, 971–72). Even in the non-judicial setting of the UN Security Council, Johnstone (2005, 198–99) showed how diplomats negotiating resolutions are aware that their legal justification of a particular behavior will set an informal, but nevertheless potentially influential precedent that will later be referred to by the interpretive legal community.…”

“…Indeed, while the need to root interpretations in existing law arguably translates into a prevalence of references to previous judicial decisions across international courts (e.g. Manley 2016; Alschner and Charlotin 2018; Stappert 2018, 971–72), also in the non-judicial context of the Security Council, decision-making is shaped by the anticipation that such decisions are likely to set precedents (Johnstone 2005, 198–99). In other words, while international courts are particularly prone to develop law by setting precedents, within the horizontal, fragmented, and often weakly institutionalized structure of international law, they might not be the only interpreters assuming such an influential position (see e.g.…”