A Formal approach to article 38(1)(d) of the ICJ statute from the perspective of the international criminal courts and tribunals

Abstract

This article offers an interpretation of Article 38(1)(d) of the ICJ Statute based on the formal pronouncements of international criminal courts and tribunals, distilled from their judgments. It considers that the qualification 'subsidiary' is meant neither to distinguish the means from the primary sources nor to denote 'of lesser importance'. It further examines the verification process envisaged in 'the determination of rules of law', as well as the more direct impact of judicial decisions vis-à-vis the teachings of publicists. © The Author, 2013. Published by Oxford University Press on behalf of EJIL Ltd. All rights reserved.