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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.