Abstract

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.

Highlights

  • The International Law Association’s Statement of Principles Applicable to the Formation of General Customary International Law[1] (2000) was a welcome addition to an admittedly voluminous literature

  • I will focus mostly on a likely harbinger, the treatment of State practice, as reflected in the Draft Conclusions already adopted by the Drafting Committee3—including parts of the Second Report[4] bearing upon them

  • Any stylistic or substantive criticism of the existing work recognizes, that it is at an early stage, and that one of International Law Commission (ILC)’s many virtues is the deliberate and careful evolution of its projects

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Summary

Introduction

The International Law Association’s Statement of Principles Applicable to the Formation of General Customary International Law[1] (2000) was a welcome addition to an admittedly voluminous literature. Draft Conclusion 3, for example, suggests that in assessing either practice or opinio juris, “regard must be had to the overall context and the particular circumstances of the evidence in question.” It is doubtful that the need to heed context and circumstances (whatever difference may be detected as between them) would escape someone applying Draft Conclusion 3, and at least as likely that the injunction will be taken as delegating a margin of appreciation to any actor applying the principle.

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Conclusion
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