The Ilc Study on Teachings as Subsidiary Means: Arguments for a Pluralist Reading

The International Law Commission’s ongoing study on subsidiary means identifies a significant pattern: international courts predominantly cite teachings from a narrow cohort of Western, male scholars. The Commission’s response, adopting “representativeness” to ensure geographic and demographic proportionality, while well-intentioned, could reflect a misalignment if this concept is applied formalistically. Unlike state-derived sources of law, teachings derive their authority from analytical rigor rather than representative mandates. This article argues that applying representativeness to scholarly works may misconceive their epistemological function within Article 38(1)(d). We propose a pluralist approach grounded in three interconnected arguments: epistemological (disrupting legalist assumptions about determinacy), dialectical (mediating between formal law and lived experience), and sociological (challenging inherited patterns of judicial reasoning). While acknowledging that both pluralism and representativeness remain susceptible to formalistic application, we suggest a purposive reading of “representativeness” that embraces pluralism as offering a more direct pathway to surfacing the assumptions embedded within legalist methodology.