New Kids on the Block

Abstract

Abstract One of the most contentious issues of the “Identification of Customary International Law”, a topic the International Law Commission has recently finalized its work on, concerns the extent to which international organizations (IOs) play a part in the creation of customary norms. Conclusion 4(2) of the 2018 draft provides that “[i]n certain cases, the practice of international organizations also contributes to the formation, or expression, of rules of customary international law.” The official commentary recognizes two such cases: i) when States “have transferred exclusive competences to the [IOs]”, and ii) when States “have conferred competences upon the [IOs] that are functionally equivalent to powers exercised by States.” After questioning the utility of the Commission’s approach, this contribution outlines an alternative analytical framework for IOs’ participation in the creation of customary rules grounded in the principle of speciality and premised on the ratione personae applicability of the rule to be identified.