The International Law Commission in the eyes of the International Law Commission
Mirror or looking-glass?
in International organisations, non-State actors, and the formation of customary international law
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This chapter addresses the manner in which the International Law Commission sees its own output in relation to custom. While in the Conclusions and Commentary on the Identification of Customary International Law it dedicates specific sections to ‘teachings of publicists’ and judgments, the Commission chose not to dedicate a sub-heading to its own work, instead mentioning it in passing in the commentary preceding the ‘Significance of certain materials for the identification of customary international law’ section. This chapter argues that the Commission did not appropriately grapple with its own role in relation to custom: despite the peripheral participation of States in its work, the International Law Commission’s output has at times fundamentally shaped customary rules, and this is not reflected in the Conclusions and Commentary. The chapter concludes that the problematic position of the International Law Commission on this subject is the triumph of pragmatism over accuracy. This is symptomatic of deeper problems with the project as a whole – the artificiality of the two-element approach, the excessive emphasis on State practice, and the impossibility of extricating ‘identification’ from ‘formation’ of custom. A closer look at the Commission’s purported mirror-image reveals distortions more akin to a looking-glass.

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