Comparative International Law Within, Not Against, International Law

Abstract

The work of the ILC constitutes an interesting illustration of a positive interplay between international law and different domestic approaches to international law. Section I of this chapter identifies the institutional ingredients that are required in order for comparative international law to obtain a sufficiently representative conception of international law. Section II explores the main tools used by the ILC on the substantive plane to draft common rules on the basis of existing and possibly divergent state practice or opinio juris. Focus is placed on customary international law insofar as general principles of international law have never been considered by the ILC as a field to be explored on its own—presumably because both codification and progressive development of international law require the Commission to base its proposal at least on some emerging state practice.