The Requisite Rigour in the Identification of Customary International Law: A Look at the Reports of the Special Rapporteur of the International Law Commission

19 (1) International Community Law Review (2017) 9; previous version: KFG Working Paper No. 6, Berlin Potsdam Research Group “The International Rule of Law – Rise or Decline?” (January 2017)

29 Pages Posted: 12 Mar 2018

See all articles by Noora Arajärvi

Noora Arajärvi

University of Oxford - Centre for Socio-Legal Studies

Date Written: January 1, 2017

Abstract

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 paper 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.

Keywords: international law, customary international law, United Nations, International Law Commission, Special Rapporteur, state practice, opinio juris

Suggested Citation

Arajärvi, Noora, The Requisite Rigour in the Identification of Customary International Law: A Look at the Reports of the Special Rapporteur of the International Law Commission (January 1, 2017). 19 (1) International Community Law Review (2017) 9; previous version: KFG Working Paper No. 6, Berlin Potsdam Research Group “The International Rule of Law – Rise or Decline?” (January 2017). Available at SSRN: https://ssrn.com/abstract=3135716 or http://dx.doi.org/10.2139/ssrn.3135716

Noora Arajärvi (Contact Author)

University of Oxford - Centre for Socio-Legal Studies ( email )

Wolfson College
Linton Road
Oxford OX2 6UD, OX1 3UQ
United Kingdom

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