The ILC and the Epistemic Limits of Teachings – Indian Blog of International Law

Arunava Banerjee

Introduction

This essay engages with the International Law Commission’s (ILC) work on “Subsidiary means for the determination of rules of international law,” and focuses on its reception of “teachings of the most highly qualified publicists of the various nations” (hereinafter teachings) as a source of international law under Article 38(1)(d) of the Statute of the International Court of Justice (ICJ). Drawing on the developments from the ILC’s 76^th session and its draft conclusions produced over the past three years, it enquires into the epistemic consequences of the ILC’s proposed draft conclusions on this topic. 

The essay undertakes two investigations into how the ILC’s draft conclusions on teachings, construct authority and the reception of critical epistemologies within international law. First, it examines how the ILC conceptualises teachings as a subsidiary means for interpreting international law. Second, it provides a semantic critique of evaluative language used by the ILC, particularly its usage of terms such as “coinciding views,” “weight” and “representativeness,” to assess how these supposedly neutral markers affect the visibility and legitimacy of non-mainstream approaches, particularly those rooted in postcolonial, feminist or Third World critiques of international law.

‘Teachings’ as a Subsidiary Source

In 2021, the ILC added the topic “subsidiary means for the determination of rules of international law” to its long-term programme of work and appointed Charles Chernor Jalloh as the Special Rapporteur. To date, he has produced three reports examining how subsidiary means are used to determine the rules of international law under Article 38 (1)(d) of the Statute of the ICJ, with the third one focusing on teachings. (See First report here, Second report here and Third report here, with its Addendum here.)

Through his reports, Jalloh frames the foundational distinction between primary and subsidiary sources of international law and places teachings not as a source, but as a tool for interpreting and identifying existing rules of international law (para 48). While maintaining its subsidiary status, his report nonetheless acknowledges the longstanding concerns about Eurocentrism around teachings as a source (paras 329-331). He highlights the historical exclusions that have epistemically shaped the present structure of international law, calling for a broader consideration of geographical regions, linguistic contexts, and diverse legal traditions (para 333).  This represents a significant departure from the semantics of ‘civilised nations’ embedded in the original text of Article 38 of the Statute of the ICJ.

The ILC’s draft conclusions build on these reports. Draft Conclusion 2 and 3 situates teachings as a non-constitutive source of international law along with judicial decisions, as a ‘subsidiary means of international law’. Draft Conclusion 4 introduces evaluative criteria such as the ‘degree of representativeness,’ the ‘quality of reasoning,’ and the ‘expertise of the individuals or the institutions involved.’ Moreover, Draft Conclusion 8 values teachings that reflect ‘coinciding views’ across the various legal systems and regions and calls for ‘gender and linguistic diversity.’ Draft Conclusion 9 links the weight of teachings to how widely they are cited or adopted in judicial decisions, reinforcing the logic of institutional validation.

Together, these developments gesture towards epistemic inclusivity; however, it is significant to recognise how they embed a framework of legitimacy premised on seemingly neutral evaluative standards. Criteria such as coinciding views, traction, and citation frequency carry innate hierarchies that privilege consensus and institutional alignment over critical or disruptive thought. Therefore, even if the draft conclusions acknowledge a wide range of teachings, it risks rendering the marginal critique intelligible only when it conforms to the dominant interpretative order.

Curated Pluralism and the Disciplining of Dissent

The Commission’s reliance on terms such as ‘coinciding views,’ ‘traction,’ and ‘representativeness’ functions as a semantic gatekeeping mechanism. It shapes the confinements of what qualifies as authoritative teachings of international law. Draft Conclusion 8 affirms that teachings gain persuasive value when it reflects the ‘coinciding views’ of learned scholars of international law from the various legal systems and geographies with ‘due regard to gender and linguistic diversities.’ Therefore, the draft conclusions appear to be inclusive, however, it subtly privileges agreement and convergence as the standard for legitimacy. This raises a fundamental question—whether dissent can survive in a framework that only values conformity? This tension becomes more evident when we see how the commission treats judicial and academic dissent. Draft Conclusion 4 acknowledges separate or dissenting judicial opinions, but it assigns weights to these opinions based on their wide citation or institutional uptake, measuring influence through reception rather than analytical substance. Likewise, a similar logic governs the treatment of teaching of international law, where its influence is measured through citability, consensus and institutional endorsement. Therefore, in this model, a postcolonial or a TWAIL critique is only recognised once they are rendered legible to the dominant doctrinal framework, not as disruptions, but as affirmations.

This is compounded by how the ILC evaluates authority through institutional positioning. Draft Conclusion 10 and 11 emphasise the weight of teachings from expert bodies or individuals serving in their personal capacity, often those are linked to tribunals and international organisations. Therefore, scholar outside these circles, particularly those advancing critical perspectives find themselves sidelined and marginalised. Paradoxically, the more a voice is institutionally endorsed, the less likely it is to challenge the epistemic foundations of the discipline.

Therefore, the commission’s intervention remains largely symbolic, as reflected in Special Rapporteur’s citation of Anthea Roberts’ Is International Law International? (fn. 615). Roberts, a well-known critique of Western epistemic parochialism, here becomes a familiar discursive nod, an acknowledgement that the critique exists. However, this critique does not result in epistemic or foundational reckoning of the discipline. As Ivon Mingashang warns (p.13),  such a practice risks collapsing the ILC’s efforts into a ‘semantic game,’ substituting inclusive language for substantive transformations. His reference to Eurocentric genealogy of international law only reflects a broader disciplinary tendency to institutionalise the structural critique and tame them into legitimised actors ensuring that colonial epistemologies persist beneath the surface of formal revisions.

Ultimately, the ILC’s approach to teachings frames a paradox; while invoking of epistemic pluralism, it still ensures the survival of the existing order by installing evaluative mechanisms that manage and contain dissent. Thereby, subduing the radical critique by curating and filtering through criteria that conflate authority with consensus and institutional endorsement. Therefore, in such a framework, epistemic pluralism becomes a carefully managed performance of openness that preserves the discipline’s foundational conceptions.

Conclusion

The ILC’s work on teaching as a subsidiary means for interpreting international law under Article 38 (1) (d) highlights a desire to accommodate greater epistemic inclusivity within the current international law discourse. Through the Special Rapporteur’s reports and the Draft Conclusions, the commission gestures towards diversification and legal pluralism with particular emphasis on geographical, gender and linguistic diversity.

Nonetheless, these developments are circumscribed by the very evaluative framework through which teachings are legitimised. Criteria such a coinciding views, traction and institutional endorsement operate less as neutral markers of authority and more as mechanisms for consolidating consensus and marginalising the angry critique. Therefore, what emerges out of this exercise is a curatorial model of inclusion, where though non-mainstream perspectives are formally acknowledged, they are recognised only when they are rendered legible to dominant doctrinal paradigm.

This paradox between the push towards pluralism and the sustenance of the existing disciplinary order shows how international law continues to accommodate critique by taming them and without undergoing any structural transformation. What the ILC has presented as openness, therefore in practice, may amount to a performance of epistemic diversity but within a controlled system that optimises the mainstream approach of international law while disciplining its critiques. In this way, the ILC’s work on teachings manages critique rather than being transformed by it and ultimately preserves the Eurocentric disciplinary foundations under the guise of openness.