Identifying the Rules for Identifying Customary International Law

Author(s):

Sean D. Murphy

Keyword(s):

United Kingdom ◽

Nongovernmental Organizations ◽

International Law ◽

Special Rapporteur ◽

The International Law Commission (ILC) decided in 2012 to add to its agenda a new topic on the “identification of customary international law” and to appoint Sir Michael Wood (United Kingdom) as special rapporteur. That project has reached an important point, with a series of Draft Conclusions having been cleared through the Commission’s Drafting Committee, and ready for the Commission’s provisional approval (together with commentaries) in 2015. As such, now is a propitious time for governments, international organizations, nongovernmental organizations, scholars, and others to weigh in on the merits of these Draft Conclusions, and additional ones that will be developed in 2015–16.

Identifying International Organizations’ Contributions to Custom

AJIL Unbound ◽

10.1017/s2398772300002117 ◽

2014 ◽

Vol 108 ◽

pp. 174-178 ◽

Author(s):

David M. DeBartolo

Keyword(s):

International Law ◽

Special Rapporteur ◽

Intergovernmental Organization ◽

Contentious Issue ◽

State Practice ◽

Past Summer ◽

It is widely acknowledged that international organizations (IOs) indirectly affect customary international law by catalyzing and focusing State practice. But next year the International Law Commission and Michael Wood, its Special Rapporteur on the Identification of Customary International Law, are primed to address a more contentious issue: when and how IOs can directly contribute, like States, to custom.This past summer the Commission’s Drafting Committee provisionally adopted a draft conclusion stating that “[i]n certain cases, the practice of international organizations also contributes to the formation, or expression, of rules of customary international law.” Based on Wood’s Second Report dated May 2014, three topics merit particular attention in the year ahead: 1) distinguishing State practice from IO practice, 2) scrutinizing potentially relevant types of IO practice, and 3) considering types of cases in which such IO practice might contribute to custom. (While the Drafting Committee declined to include definitions in its draft conclusions, this article defines “IO” as Wood did in his Second Report: “an intergovernmental organization.”)

The Requisite Rigour in the Identification of Customary International Law: A Look at the Reports of the Special Rapporteur of the International Law Commission

SSRN Electronic Journal ◽

10.2139/ssrn.3135716 ◽

2017 ◽

Author(s):

Noora Arajjrvi

Keyword(s):

International Law ◽

Special Rapporteur ◽

The Requisite Rigour in the Identification of Customary International Law

International Community Law Review ◽

10.1163/18719732-12341346 ◽

2017 ◽

Vol 19 (1) ◽

pp. 9-46 ◽

Author(s):

Noora Arajärvi

Keyword(s):

United Nations ◽

International Law ◽

General Assembly ◽

Special Rapporteur ◽

United Nations General ◽

United Nations General Assembly ◽

Over the last few decades, the methodology for the identification of customary international law (cil) has been changing. Both elements of cil – practice and opinio juris – have assumed novel and broader forms, as noted in the Reports of the Special Rapporteur of the International Law Commission (2013, 2014, 2015, 2016). This contribution discusses these Reports and the draft conclusions, and reaction by States in the Sixth Committee of the United Nations General Assembly (unga), highlighting the areas of consensus and contestation. This ties to the analysis of the main doctrinal positions, with special attention being given to the two elements of cil, and the role of the unga resolutions. The underlying motivation is to assess the real or perceived crisis of cil, and the author develops the broader argument maintaining that in order to retain unity within international law, the internal limits of cil must be carefully asserted.

Identifying the Rules for Identifying Customary International Law: Response From Michael Wood and Omri Sender

AJIL Unbound ◽

10.1017/s2398772300002154 ◽

2014 ◽

Vol 108 ◽

pp. 196-198 ◽

Author(s):

Michael Wood ◽

Omri Sender

Keyword(s):

International Law ◽

International Community ◽

General Assembly ◽

Special Rapporteur ◽

Law Commission ◽

Made In

We are grateful to AJIL Unbound for organizing this symposium on the work of the International Law Commission on identification of customary international law. We are particularly grateful to all who have contributed to the symposium for their interest and insights.We shall not here reply comprehensively to everything that has been said. Many points will be addressed in the Special Rapporteur’s third report, to be submitted to the UN Secretariat toward the end of March 2015 in preparation for the Commission’s session beginning in May 2015. We would only say that many of the points made in the symposium thus far seem eminently sensible, and will hopefully be seen as such by the Commission. It has to be noted, however, that the work of the Commission is collegiate, and the eventual output does not belong to the Special Rapporteur (who is just a facilitator) but to the Commission as a whole—and eventually to the General Assembly and the international community.

New Kids on the Block

International Community Law Review ◽

10.1163/18719732-12341405 ◽

2019 ◽

Vol 21 (3-4) ◽

pp. 325-343 ◽

Author(s):

Magdalena Pacholska

Keyword(s):

International Law ◽

Analytical Framework ◽

The Creation ◽

Abstract One of the most contentious issues of the “Identification of Customary International Law”, a topic the International Law Commission has recently finalized its work on, concerns the extent to which international organizations (IOs) play a part in the creation of customary norms. Conclusion 4(2) of the 2018 draft provides that “[i]n certain cases, the practice of international organizations also contributes to the formation, or expression, of rules of customary international law.” The official commentary recognizes two such cases: i) when States “have transferred exclusive competences to the [IOs]”, and ii) when States “have conferred competences upon the [IOs] that are functionally equivalent to powers exercised by States.” After questioning the utility of the Commission’s approach, this contribution outlines an alternative analytical framework for IOs’ participation in the creation of customary rules grounded in the principle of speciality and premised on the ratione personae applicability of the rule to be identified.

Identifying Customary International Law: First Thoughts on the ILC’s First Steps

AJIL Unbound ◽

10.1017/s2398772300002130 ◽

2014 ◽

Vol 108 ◽

pp. 184-187 ◽

Author(s):

Edward T. Swaine

Keyword(s):

International Law ◽

Early Stage ◽

Special Rapporteur ◽

First Report ◽

State Practice ◽

Early Returns ◽

The International Law Association’s Statement of Principles Applicable to the Formation of General Customary International Law (2000) was a welcome addition to an admittedly voluminous literature. Stepping into the void of authoritative commentary, it balanced an estimable representation of contemporary thinking while it also tendered sometimes controversial views on unresolved matters. Though nominally on the same subject, the International Law Commission (ILC) project offers different strengths and faces different challenges. As the First Report by the Special Rapporteur, Sir Michael Wood, has noted, the ILC’s relationship with States, in particular, provides it with a special vantage and authority. This vantage may also make its pronouncements less tendentious, and more conservative, in character. I’d like to assess the (very early) returns on how this potential differentiation is faring. For sake of brevity, I will focus mostly on a likely harbinger, the treatment of State practice, as reflected in the Draft Conclusions already adopted by the Drafting Committee—including parts of the Second Report bearing upon them. Any stylistic or substantive criticism of the existing work recognizes, of course, that it is at an early stage, and that one of ILC’s many virtues is the deliberate and careful evolution of its projects.

5 State Practice

10.1093/law/9780198865957.003.0005 ◽

2021 ◽

Author(s):

Shelton Dinah

Keyword(s):

International Law ◽

Special Rapporteur ◽

State Practice ◽

Jus Cogens ◽

This chapter focuses on state practice. The recent International Law Commission (ILC) work on jus cogens, especially in response to comments and critiques from States, paid great attention to state practice supporting the draft conclusions of the Special Rapporteur. Indeed, as much as possible, the SR and the ILC as a whole rooted his findings and recommendations in extensive citation of precedents. The invocation of practice was broadly inclusive, ranging from votes and official statements in international organizations, through treaty practice (including general comments and conclusions of treaty bodies), to international and national jurisprudence. This approach lends strength to the ILC work.

Internationally Wrongful Acts in the Domestic Courts: The Contribution of Domestic Courts to the Development of Customary International Law Relating to the Engagement of International Responsibility

Leiden Journal of International Law ◽

10.1017/s0922156513000277 ◽

2013 ◽

Vol 26 (3) ◽

pp. 615-642 ◽

Cited By ~ 3

Author(s):

SIMON OLLESON

Keyword(s):

International Law ◽

International Organization ◽

Domestic Courts ◽

International Responsibility ◽

Further Development ◽

Law Commission ◽

Point Of Reference

AbstractThe rules of customary international law governing when a state or international organization will be held to have committed an internationally wrongful act, thereby engaging its international responsibility, are relatively well settled in international practice and jurisprudence. A key point of reference in this regard is the work of the International Law Commission on State Responsibility and Responsibility of International Organizations. The present paper examines relevant practice of domestic courts from a variety of jurisdictions which have relied upon the ILC's work, and discusses the extent to which domestic courts may make a contribution to the further development of the rules relating to engagement of responsibility. It concludes that, due to the operation of rules of, inter alia, immunity and non-justiciability, the principal instance in which domestic courts may actually apply the rules of international law is where it is the responsibility of the forum state which is in issue.

Customary International Law: A Moral Judgment-Based Account

AJIL Unbound ◽

10.1017/s2398772300009491 ◽

2014 ◽

Vol 108 ◽

pp. 328-333

Author(s):

John Tasioulas

Keyword(s):

Moral Judgment ◽

International Law ◽

Double Counting ◽

Special Rapporteur ◽

Effective Response ◽

State Practice ◽

Interpretive Process ◽

In this contribution to AJIL Unbound, I outline a moral judgment-based account (MJA) of customary inter-national law. On the MJA, moral judgment plays a dual role in the formation of customary international law. First, MJA is part of a disjunctive analysis of opinio juris, which involves a moral judgment about what the law ought to be or what it justifiably is. Second, the interpretive process of adducing a customary norm from state practice and opinio jurischaracteristically requires some moral judgment on the part of the interpreter. Along the way, I draw attention to two points at which the MJA departs significantly from the analysis presented in the International Law Commission (ILC)’s Second Report by Special Rapporteur Sir Michael Wood, on the identification of customary international law.1 First, by more sharply separating state practice from opinio juris, MJA avoids systematically double-counting the same facts as both opinio jurisand state practice. Second, MJA offers an effective response to the so-called “paradox of custom”, according to which a customary norm can only come into existence if a sufficient number of states mistakenly believe (or pretend to believe) that it already exists.

The Fifty-Sixth Session of the International Law Commission

The American Journal of International Law ◽

10.2307/3246099 ◽

2005 ◽

Vol 99 (1) ◽

pp. 211-221 ◽

Cited By ~ 2

Author(s):

Michael J. Matheson

Keyword(s):

International Law ◽

Armed Conflict ◽

Diplomatic Protection ◽

Sixth Session ◽

International Liability ◽

Fragmentation Of International Law ◽

The International Law Commission held its fifty-sixdi session in Geneva from May 3 to June 4, and from July 5 to August 6, 2004, under the chairmanship of Teodor Melescanu of Romania. The Commission completed its first reading of draft principles on international liability for transboundary harm and draft articles on diplomatic protection, which have now been submitted for comment by states with a view to their completion in 2006. The Commission also continued its work on reservations to treaties, responsibility of international organizations, unilateral acts of states, fragmentation of international law, and shared natural resources. In addition, the Commission decided to start work next year on the effect of armed conflict on treaties and the expulsion of aliens, and to recommend adding a new topic—the obligation to prosecute or extradite—to its long-term program. The following is a summary of where each topic stands and what issues are likely to be most prominent at the Commission's 2005 session.