As other chapters in this volume confirm, the role of international organisations in the formation and expression of rules of customary international law, as well as the extent of such a role, remains controversial in legal doctrine and practice. This chapter explores several aspects of the practice of the Secretariat of the United Nations as a specific example in an attempt to identify significant points that may inform the general debate on the issue. In so doing, it follows a practical approach based on the recent work of the InternationalLawCommission
the International Committee of the Red Cross’s ambiguous positions on the matter. 2 This time – and as if scholarly research agendas were determined outside academic circles – it is the provisional adoption by the InternationalLawCommission of a specific draft conclusion on the matter that ignited this new fervour. 3 This renewed scholarly excitement for the oft-discussed question of non-State actors’ participation in custom-forming processes – and which this volume is certainly complicit in — remains in need of justifications as to whether, from the perspective
The Conclusions on Identification of Customary International Law (hereafter ‘the Conclusions’) as adopted by the InternationalLawCommission on second reading 1 are an important resource in a thorny area of international law. A stated primary aim is to offer guidance to practitioners, 2 which accounts for the focus on systematisation of positive international law and practice.
The Conclusions are brief on the position of international organisations as independent actors in the formation of customary international law. This modest role could seem
International lawmaking is no longer a privilege exclusively reserved for States. As mentioned by the InternationalLawCommission in its Conclusion 13(1) on the Identification of Customary International Law in 2018, decisions of international tribunals serve as a subsidiary means for the ascertainment of rules of customary international law. 1 That said, in light of the principle non ultra petita , the real contributors appear to be the claimants who raise discussions for customary international law determination before a tribunal, which then decides only
Stories about international organisations, non-State actors, and the formation of customary international law
Sufyan Droubi and Jean d’Aspremont
and complexity. This presupposed orthodoxy also provides the background story against which the following chapters offer a wide range of refreshing and new stories about the role of non-State actors and international organisations in the formation of customary international law.
1 The InternationalLawCommission as the starting point of contemporary stories about customary international law
Although customary international law has continuously been on the agenda of international legal scholars, it seems uncontested that debates and story-telling on custom have
This chapter considers the development of secondary rules of international law to cover the wrongful acts and omissions of inter-governmental organisations. It analyses the Articles on Responsibility of International Organisations (ARIO) developed by the International Law Commission. The chapter focuses on the weaknesses of the ARIO in distinguishing the responsibility of the UN from that of member states, something that has caused difficulties in judicial interpretation of the ARIO in the case of UN-mandated operation. It examines the issues of attribution in firstly the Behrami case before the European Court of Human Rights and secondly various cases before Dutch courts following the failure of the Dutch battalion of the United Nations Protection Force to protect civilians in Srebrenica in 1995.
(United Nations Transitional Administration in East Timor) as the best examples of full administration of a State’s governance mechanisms by the United Nations. UNOSOM II (Somalia) and the Office of the High-Representative for Bosnia-Herzegovina will also be examined as they are good examples of a less intrusive, co-administration approach. Other International Territorial Administrations will also be included. In searching for instances of citation to these International Territorial Administrations, the author examined the records of the InternationalLawCommission
organisations in their external relations as opposed to conducts of organisations relating to the internal operation of the organisation, 5 which is also an approach adopted by the Special Rapporteur of the InternationalLawCommission on the topic of identification of customary international law. 6 Third, it is acknowledged that international organisations play a dual role 7 in customary lawmaking: international organisations as forums of States and international organisations as independent actors. In this sense ascertainment and assessment of practice of international
accordance with a sense of legal obligation. The two-elements approach has also been upheld by the InternationalLawCommission in its work on the ‘identification of customary international law’ under the guidance of Sir Michael Wood since 2012. 8 A few remarks on each of these two elements are warranted.
As far as the objective element (‘State practice’) is concerned, it must first be acknowledged that there is ambiguity in usage of term ‘State practice’, namely duplicative use of the term to describe the repetition of State conducts and the norm that shapes the
community’s understanding of ‘law’ that multiple InternationalLawCommission studies have acknowledged the relevance of the human rights treaty bodies, including the ongoing work on subsequent agreement and subsequent practice in relation to interpretation of treaties, 2 the 2011 Guide to Practice on Reservations to Treaties 3 and its current examination of customary international law.
This chapter proceeds from the accepted notion that international organisations contribute to international lawmaking in a number of ways. 4 Tracking the possibility acknowledged in