Remarks on the Ilc Work on the Identification of Customary Law and Human Rights: Curbing “Droit de L’hommisme”?

Abstract

The specific features of human rights have sometimes been used to claim exception from the basic rules on the formation of customary international law. This article explores the International Law Commission (ILC) Work on the Identification of Customary Law, with particular regard to human rights. According to Draft Conclusion 3, evidence of practice and opinio juris must be carefully assessed according to the overall context and the relevant circumstances. The argument will be made that the Draft Conclusions provisionally adopted by the ILC Drafting Committee allow adequate flexibility to accommodate the “speciality” of human rights.