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Identifying International Organizations’ Contributions to Custom

Part of: Reflections on Customary International Law and the International Law Commission’s Project

Published online by Cambridge University Press:  20 January 2017

David M. DeBartolo
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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.”)

Type
Symposium: Reflections on Customary International Law and the International Law Commission’s Project
Information
AJIL Unbound , Volume 108 , 2014 , pp. 174 - 178
Copyright
Copyright © American Society of International Law 2014

References

1 Michael Wood, Special Rapporteur, Second Rep. on Identification of Customary International Law, Int’l Law Comm’n, UN Doc. A/CN.4/672 (May 22, 2014).

2 See, e.g. Paust, Jordan J., Customary International Law: Its Nature, Sources and Status as Law of the United States, 12 Mich. J. Int’l L. 59, 61 (1990)Google Scholar.