CYIL Vol. 7, 2016

CYIL 7 ȍ2016Ȏ THE INTERNATIONAL LAWCOMMISSION AT THE END OF ITS QUINQUENNIUM… 2.2 Identification of customary international law Concerning the topic “Identification of customary international law”, the Commission considered the fourth report of the Special Rapporteur, Sir Michael Wood. 9 It contained, in particular, proposed amendments of several draft conclusions in light of the comments by Governments. The report also addressed ways and means to make the evidence of customary international law more readily available and provided a bibliography on the topic. In addition, the Commission had before it a memorandum by the Secretariat concerning the role of decisions of national courts in the case-law of international courts and tribunals of a universal character for the purpose of the determination of customary international law. 10 In the beginning of May the Commission decided to establish a working group to assist the Special Rapporteur in the preparation of the draft commentaries to the conclusions to be adopted. Following the debate in Plenary the ILC decided to refer the proposed amendments to the Drafting Committee. On the basis of the report of the Drafting Committee, explaining also some minor changes, the Commission adopted a set of 16 draft conclusions. At the end of the session, on 8 August 2016, the ILC adopted the commentaries to the draft conclusions and decided to transmit the draft conclusions on identification of customary international law, through the Secretary-General, to Governments for comments and observations. 11 The draft conclusions are divided into seven parts. Part One includes only Conclusion 1 on the scope. Accordingly, the present draft conclusions concern the way in which the existence and content of rules of customary international law are to be determined. 12 Part Two addresses the basic approach to the determination of a rule of customary international law, which is based on two constituent elements (conclusion 2), which is a general practice that is accepted as law ( opinio juris ). According to conclusion 3, in assessing evidence for the two constituent elements, regard must be had to the overall context, the nature of the rule, and particular circumstances in which the evidence in question is to be found. Each of the two constituent elements is to be separately ascertained (para. 2). The following parts present a concretization of the basic approach. Part Three deals with general practice. Under conclusion 4 (Requirement of practice), a general practice means that it is primarily the practice of States that contributes to the formation, or expression, of rules of customary international law. In certain cases the practice of international organizations also contributes to the formation (or expression) of rules of customary law, mainly where the rules are addressed

9 See A/CN.4/695 (2016). 10 See A/CN.4/691 (2016). 11 See doc. A/CN.4/L.883 (2016), p. 5, § 11. 12 See doc. A/CN.4/883/Add.1, p. 3.

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