Veronika Bílková
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The International Law Commission perspective on non-State actors and customary international law
in International organisations, non-State actors, and the formation of customary international law
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The chapter presents and critically assesses the view on non-State actors expressed in the Conclusions on Identification of Customary International Law adopted by the United Nations International Law Commission in 2018. Conclusion 4(3), setting the requirement of practice, stipulates that ‘conduct of other actors is not practice that contributes to the formation, or expression, of rules of customary international law, but may be relevant when assessing the practice referred to in paragraphs 1 and 2’ (i.e. practice of States and international organizations). Conclusion 9, dealing with the requirement of opinio juris, does not mention non-State actors at all. The chapter first traces the history of the conclusions in the International Law Commission work and then casts some doubt on the position that the International Law Commission has adopted in light of the views of other actors. It shows that the International Law Commission fails to do justice to the complex relationship that nowadays exists between non-State actors and customary international law.

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