Assessing the Role of Resolutions in the ILC Draft Conclusions on Identification of Customary International Law: Substantive and Methodological Issues

14(2) (2017) International Organizations Law Review 227-253

23 Pages Posted: 24 May 2017 Last revised: 26 Jan 2018

Multiple version iconThere are 2 versions of this paper

Date Written: May 23, 2017

Abstract

On 30 May 2016, the International Law Commission (ILC) adopted a set of 16 draft Conclusions providing a methodology on how to identify customary international law. Although largely based on the two elements approach set forth in Article 38(1)(b) of the ICJ Statute, the ILC study pushes the boundaries of the formal sources of international law beyond the realm of state practice by recognizing that the practice of international organizations (IOs) as such may be constitutive of custom. This article critically examines the ILC draft Conclusions concerning the role of IOs in the process of custom creation. It examines the concept of resolution adopted by the ILC and assesses the coherence of the interpretive methodology devised by the ILC using the UN General Assembly resolutions as a case study. The findings show that the draft Conclusions fall short of expectation in providing authoritative guidance to scholars and practitioners alike.

Keywords: International Law Commission; customary international law; resolutions; UN General Assembly

Suggested Citation

Deplano, Rossana, Assessing the Role of Resolutions in the ILC Draft Conclusions on Identification of Customary International Law: Substantive and Methodological Issues (May 23, 2017). 14(2) (2017) International Organizations Law Review 227-253. Available at SSRN: https://ssrn.com/abstract=2972639

Rossana Deplano (Contact Author)

Leicester Law School ( email )

University Road
Leicester LE1 7RH, LE1 7RH
United Kingdom

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