Introductory Note: Beyond the Identification of International Customary Rules

Abstract

This is a brief introduction to a special journal issue on international customary law. The note offers information on the studies published in the issue and identifies two (interlinked) threads that connect them, namely state-centrism in custom making and the role of state will/consent (associated with the voluntarist school of thought within international legal positivism). Moreover, the note links the papers published in the issue with the work of the ILC on the identification of international customary law and argues that, to a certain degree, while offering authoritative guidance on the identification of custom, the ILC defines customary international law as a source of law. This, in a sense, overlaps with the function of judges/courts, which also define custom as a source of international law when they employ that source as a means to identify a customary rule. This means that ILC's approach on customary law may limit the power/authority of judges/courts to construct their own definition of custom as a source. The question to be asked then is how flexible or rigid should ILC's definition of customary law be.