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1.9.2 Legal Writings of Highly Qualified Publicists. The writings “of the most highlyqualified publicists” have sometimes been used as a subsidiary means of determining the rules ofinternational law. 158 For example, classical publicists, such as Hugo Grotius and Emmerich deVattel, and recognized scholars, such as Francis Lieber and Hersch Lauterpacht, have beenwidely cited and relied upon as practitioners have sought to interpret and apply the law of war.The standard for whose writings should be relied upon is high, and writings are only asauthoritative as the evidence upon which they are based. The writings should only be reliedupon to the degree they accurately reflect existing law, rather than the author’s views about whatthe law should be. 1591.10 LEGAL FORCE OF THE LAW OF WARThis section addresses the technical legal force of the law of war under international andU.S. domestic law. As a matter of policy, DoD personnel may be required to adhere to law ofwar rules, even where the rules do not technically apply as a matter of law. 1601.10.1 Legal Force of the Law of War Under International Law. The technical force of alaw of war rule depends on whether it takes the form of a treaty or customary international law.1.10.1.1 Legal Force of Treaties Among States. Under international law, everytreaty in force is binding upon the Parties to it and must be performed by them in good faith. 161A treaty enters into force for a State after, inter alia, it has provided its consent to be bound bythe treaty. 162 In some cases, the terms of a treaty may cause it to expire, and in other cases,158 ICJ STATUTE art. 38(1) (“The Court, whose function is to decide in accordance with international law suchdisputes as are submitted to it, shall apply: … d. subject to the provisions of Article 59, … the teachings of the mosthighly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.”).159 See The Paquete Habana, 175 U.S. 677, 700 (1900) (“For this purpose, where there is no treaty, and nocontrolling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilizednations; and, as evidence of these, to the works of jurists and commentators, who by years of labor, research andexperience, have made themselves peculiarly well acquainted with the subjects of which they treat. Such works areresorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but fortrustworthy evidence of what the law really is.”).160 Refer to § 3.1.1 (DoD Practice of Applying Law of War Rules Even When Not Technically Applicable).161 Consider VCLT art. 26 (“Every treaty in force is binding upon the parties to it and must be performed by them ingood faith.”).162 Consider VCLT art. 24 (“1. A treaty enters into force in such manner and upon such date as it may provide or asthe negotiating States may agree. 2. Failing any such provision or agreement, a treaty enters into force as soon asconsent to be bound by the treaty has been established for all the negotiating States. 3. When the consent of a Stateto be bound by a treaty is established on a date after the treaty has come into force, the treaty enters into force forthat State on that date, unless the treaty otherwise provides. 4. The provisions of a treaty regulating theauthentication of its text, the establishment of the consent of States to be bound by the treaty, the manner or date ofits entry into force, reservations, the functions of the depositary and other matters arising necessarily before the entryinto force of the treaty apply from the time of the adoption of its text.”). See also DEPARTMENT OF THE ARMYPAMPHLET 27-161-1, I International Law: Law of Peace, 8-12 (Sept. 1, 1979) (“An international agreement isbasically a contract between states, and elements of obligation akin to those found in municipal contract law arepresent. However, as discussed in Part I, a treaty is not a contract in the common law sense of an agreementrequiring consideration. It is the assent to be bound and not reciprocity or quid pro quo that obligates the parties.”).36