International Law Commission Ignores Criticism, Proposes Progressive Rules

By Stefano Gennarini, J.D. | November 17, 2016

International Law Commission, 2012–2016

NEW YORK, November 18 (C-Fam) New rules from the world’s highest international law body will likely lead to an onslaught of litigation and judicial decisions on the basis of new and non-negotiated customary international law.

The International Law Commission, second only to the International Court of Justice in its authority on international law, added a commentary to the guidelines for the identification of customary international law which it first published last year.

The guidelines, presented again to the General Assembly this year, remain virtually unmodified and again invited scrutiny from member states. The United States in particular urged caution in asserting new international norms that may emerge from the behavior of states without any formal negotiations.

The rules “appear to go beyond the current state of international law” U.S. Department of State Legal Adviser, Brian J. Egan, told the International Law Commission during a meeting of the General Assembly when the guidelines were discussed last month.

“The result is progressive development rather than codification” he explained. “Mixing elements of progressive development and established rules in this project risks confusing and misleading readers and undermining the utility and authority of the International Law Commission’s product.”

By contrasting “progressive development” and “codification” the U.S. delegate questioned the attempt of the International Law Commission to lower the bar for the identification of customary international law.

Customary law is ancient, predating modern states, and contains norms and customs accumulated through centuries of interactions between countries.  The bar for such norms has always been set high because of the potential to bind states to norms without any formal negotiations or positive exercise of sovereign lawmaking prerogative on their part.

To this end, international law jurisprudence uses a two-step process to identify customary international norms. First, there must be a universal, or near universal, and consistent practice of states. Secondly, this state practice must be based on the understanding that states are bound to act accordingly as a matter of customary law, which is known as opinion juris.

The new guidelines lower the bar for the identification of new norms and stretch the limits of what evidence of practice and opinio juris can be considered when making claims that new customary norms exist.

The US delegation reminded members of the Commission there was a “risk” the draft conclusions and commentary might “leave the impression that customary international law is easily formed or identified.” “That is not the case,” the U.S. delegate said.

“Customary international law is formed only when the strict requirements for extensive and virtually uniform practice of States, including specially affected States, accompanied by opinio juris,” he explained.

In addition, the American delegate criticized the notion that the practice of international organizations “may serve as directly relevant practice, or play the same role as State practice” as evidence of customary international law.

Other delegations questioned whether the interactions of states with international organizations should be used as evidence of customary international law in the first place.

From January 2017 through the end of the year UN member states will have the opportunity to submit comprehensive comments on the guidelines and commentary.