International Law Commission International Law Commission

Last update: February 16, 2017

Summaries of the Work of the International Law Commission

Identification of customary international law*

*At its sixty-fifth session, in 2013, the Commission decided to change the title of the topic from "Formation and evidence of customary international law" to "Identification of customary international law".

See also: Analytical Guide | Texts and Instruments

At its sixty-fourth session, in 2012, the International Law Commission decided to include the topic "Formation and evidence of customary international law" in its programme of work, on the basis of the recommendation of the Working Group on the long-term programme of work. The Commission decided to appoint Mr. Michael Wood as Special Rapporteur for the topic.

At the sixty-fifth session in 2013, the Commission had before it the first report of the Special Rapporteur,1 as well as a memorandum of the Secretariat on the topic.2The Commission decided to change the title of the topic to “Identification of customary international law”.

At the sixty-sixth session in 2014, the Commission had before it the second report of the Special Rapporteur.3 The Commission referred draft conclusions 1 to 11, as contained in the second report of the Special Rapporteur, to the Drafting Committee.

At the sixty-seventh session in 2015, the Commission had before it the third report of the Special Rapporteur,4 which contained, inter alia, additional paragraphs to three of the draft conclusions proposed in the second report and five new draft conclusions. The Commission subsequently took note of draft conclusions 1 to 16 [15] provisionally adopted by the Drafting Committee at the sixty-sixth and sixty-seventh sessions.

At its sixty-eighth session, in 2016, the Commission had before it the fourth report of the Special Rapporteur, an addendum to that report providing a bibliography on the topic,5 and a memorandum by the Secretariat on the topic.6 The fourth report contained suggestions for the amendments of the draft conclusions provisionally adopted in light of the comments received by Governments and others. The report also addressed ways and means to make the evidence of customary international law more readily available.7

Following consideration of the fourth report of the Special Rapporteur, as well as of the memorandum by the Secretariat, the Commission referred to the Drafting Committee the proposed amendments to the draft conclusions contained in the fourth report.8 The Commission considered and adopted the report of the Drafting Committee on draft conclusions 1 to 16, thus adopting a set of 16 draft conclusions on the topic on first reading, together with commentaries thereto.9 The Commission had established an open-ended working group, under the Chairmanship of Marcelo Vázquez-Bermudez, to assist the Special Rapporteur in the preparation of the draft commentaries to the draft conclusions.10 In accordance with articles 16 to 21 of its Statute, the Commission transmitted the draft conclusions, through the Secretary-General, to Governments for comments and observations, with the request that such comments and observations be submitted to the Secretary-General by 1 January 2018.11

Also at its sixty-eighth session, the Commission requested the Secretariat to prepare a memorandum on ways and means for making the evidence of customary international law more readily available, which would survey the present state of the evidence of customary international law and make suggestions for its improvement.

The work of the Commission on the topic as described above has been proceeding in accordance with the successive resolutions adopted by the General Assembly under the item relating to the report of the International Law Commission.12

1 See document A/CN.4/663.

2 See document A/CN.4/659.

3 See document A/CN.4/672.

4 See document A/CN.4/682.

5 See document A/CN.4/695 and Add.1.

6 See document A/CN.4/691.

7 Official Records of the General Assembly, Seventy-first Session, Supplement No. 10 (A/71/10), para. 54.

8 Ibid., para. 55.

9 Ibid., paras. 57 and 59, 62–63.

10 Ibid., para. 58.

11 Ibid., para. 60.

12 General Assembly resolution 67/92 of 14 December 2012; 68/112 of 16 December 2013; 69/118 of 10 December 2014; 70/236 of 23 December 2015; and 71/140 of 13 December 2016.