This chapter addresses one specific aspect of the InternationalLawCommission’s work on the identification of customary international law: how it sees its own output in relation to custom. While in the latest Conclusions and Commentary on the Identification of Customary International Law (hereafter ‘the Conclusions’) it dedicates specific sections to ‘teachings of publicists’ and judgments, the Commission chose not to dedicate a discrete sub-heading to its own work, instead mentioning it in passing in the commentary preceding the ‘Significance of certain
In 2018, the United Nations InternationalLawCommission adopted, on second reading, a set of Conclusions on Identification of Customary International Law . 1 The document, now submitted to the United Nations General Assembly, contains sixteen conclusions relating to various aspects of the formation and identification of customary international law. The basic approach that the document embraces is a traditional one. A rule of customary international law emerges when there is ‘a general practice that is accepted as law ( opinio juris )’ . 2 The practice is
The present volume is a timely addition to the vast (and still growing) literature on customary international law. In 2018 the United Nations InternationalLawCommission adopted, on second and final reading, a set of sixteen conclusions (with commentaries) on identification of customary international law, thus bringing to completion a six-year study of the topic. 1 Throughout that time, the question whether, and if so how, the practice of international (intergovernmental) organizations may contribute to the formation and identification of customary
This collection of chapters provides the most comprehensive study of the theory and practice on the contribution of international organisations and non-State actors to the formation of customary international law. It offers new practical and theoretical perspectives on one of the most complex questions about the making of international law, namely the possibility that actors other than states contribute to the making of customary international law. Notwithstanding the completion by the International Law Commission of its work on the identification of customary international law, the making of customary international law remains riddled with acute practical and theoretical controversies which have been left unresolved and which continue to be intensively debated in both practice and scholarship. Making extensively reference to the case-law of international law courts and tribunals as well as the practice of treaty-monitoring bodies while also engaging with the most recent scholarly work on customary international law, this new volume provides innovative tools and guidance to legal scholars, researchers in law, law students, lecturers in law, practitioners, legal advisers, judges, arbitrators, and counsels as well as tools to address contemporary questions of international law-making.
organisations too. Both propositions are by no means settled law and the role of international organisations in the formation of custom remains the subject of considerable controversy among commentators.
In the context of the project on the identification of customary international law, the InternationalLawCommission has dealt extensively since 2013 with the role of international organisations in the formation of custom. Despite the long debates between the members and the reports undertaken by the Special Rapporteur Sir Michael Wood, the issue remains controversial after
On 30 May 2016 the InternationalLawCommission adopted a set of sixteen Conclusions aimed at explaining how a customary rule is formed and how it is possible to identify either an emerging or a fully formed rule of customary law. However, being the process of custom creation entirely informal and unstructured, the InternationalLawCommission Conclusions do not, and cannot, represent an objective method for ascertaining customary rules. They thus fail to provide authoritative guidance to practitioners in the field of international organizations’ practice
humanitarian law (the Database), complemented by regular updates of the Study’s practice part. 10 The International Committee of the Red Cross therefore also followed the work of the InternationalLawCommission on the topic of the ‘Identification of customary international law’ with great interest.
This chapter is intended to address two main points: first, it gives an overview of the International Committee of the Red Cross’s experience in the identification of customary international humanitarian law, related to its work on the Study (1). Second, it addresses specific
to develop the argument, non-State actors will initially be contextualized within the orthodox perspective of customary international law which essentially claims for exclusion (1). Special regard will be given to the conclusions of the InternationalLawCommission, considering that nowadays it has one of the leading voices on the matter (2). Subsequently, and with the purpose to relativize the orthodox two-element approach as reused by the InternationalLawCommission, an inclusive perspective regarding the role of non-State actors in customary international law
The InternationalLawCommission’s work on the identification of customary international law raised the question whether actors other than States may play a role in the formation or expression of customary international law. Beyond international organisations whose contribution to the formation of customary international law is covered in detail in the Special Rapporteur’s third report, the role of ‘other non-State actors’ such as non-governmental organisations and even individuals was only briefly invoked by the Special Rapporteur. Indeed, scholar works
United Nations. 2 Similarly, the 2018 InternationalLawCommission’s conclusions on the identification of customary international law mention the contribution of the Commission itself only in the commentaries and privilege a State-centric perspective. 3 Curiously, organs that actively engage in this relevant activity deny the same capacity to themselves and to their own institution.
The friction between the traditional role of States and the growing role of international organizations in the international community contributes to this paradox. Either organizations