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

  • Edward T. Swaine (a1)

Extract

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.

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References

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1 Int’l Law Ass’n, London Conference, 2000, Final Rep. of Comm. on Formation of Customary (General) International Law, Statement of Principles Applicable to the Formation of General Customary International Law (2000).

2 Michael Wood, Special Rapporteur, First Rep. on Formation and Evidence of Customary International Law 3, Int’l Law Comm’n, UN Doc. A/CN.4/663 (May 17, 2013).

3 Gilberto Saboia, Chairman of the Drafting Committee, Statement on the Identification of Customary International Law, Int’l Law Comm’n (Aug. 7, 2014).

4 Michael Wood, Special Rapporteur, Second Rep. on Identification of Customary International Law, Int’l Law Comm’n, UN Doc. A/CN.4/672 (May 22, 2014).

5 See Int’l Law Comm’n, Ways and Means for Making the Evidence of Customary International Law More Readily Available 367, UN Doc. A/CN.4/34 (1950), reprinted in [1950] 2 Y.B. Int’l L. Comm’n 367, UN Doc. A/CN.4/SER.A/1950/Add.I.

6 See Wood, supra note 4, at 24.

7 Id.

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

  • Edward T. Swaine (a1)

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