The Requisite Rigour in the Identification of Customary International Law

A Look at the Reports of the Special Rapporteur of the International Law Commission

in International Community Law Review
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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.

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  • 59

    Sean D. Murphy“The Identification of Customary International Law and Other Topics” p. 830. He also raised this issue at the ilc debate on the Third Report ilc 67th session provisional summary record of the 3251st meeting A/CN.4/SR.3251.

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  • 75

    See the Second Report pp. 8–14.

  • 83

    Ibid. p. 149.

  • 104

    Maurice Mendelson“The International Court of Justice and the Sources of International Law,” in Fifty Years of the International Court of Justice: Essays in Honour of Sir Robert Jenningsedited by Vaughan Lowe and Malgosia Fitzmaurice (2008) p. 86.

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  • 110

    Jean-Marie Henckaerts and Els Debuf“The ICRC and the Clarification of Customary International Humanitarian Law” in Reexamining Customary International LawBrian D. Lepard (ed.) (2016) pp. 161 186.

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