Identifying International Organizations’ Contributions to Custom

David M Debartolo

doi:10.1017/s2398772300002117

Abstract

It is widely acknowledged that international organizations (IOs) indirectly affect customary international law by catalyzing and focusing State practice. But next year the International Law Commission and Michael Wood, its Special Rapporteur on the Identification of Customary International Law, are primed to address a more contentious issue: when and how IOs can directly contribute, like States, to custom.This past summer the Commission’s Drafting Committee provisionally adopted a draft conclusion stating that “[i]n certain cases, the practice of international organizations also contributes to the formation, or expression, of rules of customary international law.” Based on Wood’s Second Report dated May 2014, three topics merit particular attention in the year ahead: 1) distinguishing State practice from IO practice, 2) scrutinizing potentially relevant types of IO practice, and 3) considering types of cases in which such IO practice might contribute to custom. (While the Drafting Committee declined to include definitions in its draft conclusions, this article defines “IO” as Wood did in his Second Report: “an intergovernmental organization.”)

Highlights

It is widely acknowledged that international organizations (IOs) indirectly affect customary international law by catalyzing and focusing State practice
This past summer the Commission’s Drafting Committee provisionally adopted a draft conclusion stating that “[i]n certain cases, the practice of international organizations contributes to the formation, or expression, of rules of customary international law.”
Based on Wood’s Second Report[1] dated May 2014, three topics merit particular attention in the year ahead: 1) distinguishing State practice from IO practice, 2) scrutinizing potentially relevant types of IO practice, and 3) considering types of cases in which such IO practice might contribute to custom. (While the Drafting Committee declined to include definitions in its draft conclusions, this article defines “IO” as Wood did in his Second Report: “an intergovernmental organization.”)

Summary

Distinguishing State Practice from IO Practice

Wood’s Second Report is notable for its expansive conception of “practice.” Wood rejects the restriction of practice to situations within the domain of international relations, to actual incidents or episodes, and to physical conduct. He endorses, rather, the statement that “the term ‘practice’ . It is unlikely that most States view the positions they take in negotiating and voting on IO resolutions as being undertaken out of a sense of legal obligation (with the exception, perhaps, of members of the European Union, who are bound by the Treaty on European Union to put into effect a common foreign and security policy) Highlighting such practice seems unlikely to assist readers seeking to identify a rule of customary international law. Wood himself refers to such practice in this way in the Second Report’s draft conclusion 11.2 on opinio juris

Types of IO Practice

Practice of IO Intergovernmental Organs

AJIL UNBOUND

Practice of IO Secretariats

Practice of IO Judicial Bodies