International Law Commission International Law Commission

Last update: April 30, 2024

Analytical Guide to the Work of the International Law Commission

Subsidiary means for the determination of rules of international law

See also: Summary | Texts and Instruments

Mandate

Studies undertaken by the Secretariat and Reports of the Secretary-General

  • 74th session of the International Law Commission (2023)
    • Memorandum prepared by the Secretariat
  • 75th session of the International Law Commission (2024)
    • Memorandum prepared by the Secretariat

Reports of the Working Group or Sub-Committee

None

Reports of the Special Rapporteur

  • Discussion on the inclusion of the topic in the programme of work, the debate in the topic in the Sixth Committee of the UN General Assembly, the scope and outcome of the topic, methodology, previous work of the Commission on subsidiary means, the nature and function of sources in the international legal system, consideration of the drafting history of article 38, paragraph 1(d), of the Statute of the International Court of Justice, textual analysis of article 38, paragraph 1(d), of the Statute of the international Court of Justice, additional subsidiary means for the determination of rules of international law, and conclusion and future programme of work. Proposals for five draft conclusions: on the scope of the conclusions, categories of subsidiary means for the determination of rules of law, criteria for the assessment of subsidiary means for the determination of rules of law, decisions of courts and tribunals, and teachings.
    • First report of the Special Rapporteur, Mr. Charles Chernor Jalloh (74th session of the ILC (2023))
  • Consideration of the functions of subsidiary means for the determination of rules of international law, including in the drafting history of article 38, paragraph 1(d), of the Statute of the international Court of Justice, the practice of the International Court of Justice and other international tribunals, and scholarly writings concerning the functions of subsidiary means. General nature of precedent in domestic and international adjudication. Article 38, paragraph 1 (d), and its relationship to Article 59 of the Statute of the International Court of Justice, Article 59 of the Statute of the International Court of Justice, precedent and the link to the rights of third States. Proposals for draft conclusions 6 (Nature and function of subsidiary means), 7 (Absence of a rule of precedent in international law international courts or tribunals) and 8 (Persuasive value of decisions of courts and tribunals).
    • Second report of the Special Rapporteur, Mr. Charles Chernor Jalloh (75th session of the ILC (2024))

Reports of the Drafting Committee

  • 74th session of the International Law Commission (2023)
    • Titles and texts of draft conclusions 1 to 3 provisionally adopted by the Drafting Committee
    • Statement of the Chair of the Drafting Committee (3 July 2023 and 21 July 2023)

Comments by Governments

 
 

Other

None

Reports of the International Law Commission

  • Report of the International Law Commission on the work of its seventy-fourth session, 24 April to 2 June and from 3 July to 4 August 2023
    • The Commission had before it the first report of the Special Rapporteur (A/CN.4/760), as well as a memorandum by the Secretariat providing information on previous work of the Commission that could be of relevance to the future work of the Commission (A/CN.4/759). The first report addressed, inter alia, the scope of the topic and the main issues to be addressed in the course of the work of the Commission, the drafting history of Article 38, paragraph 1 (d) of the Statute of the International Court of Justice and the previous work of the Commission related to subsidiary means.
    • Following the debate in plenary, the Commission decided to refer draft conclusions 1, 2, 3, 4 and 5, as presented in the first report, to the Drafting Committee, taking into account the comments made in plenary.
    • The Commission received the report of the Drafting Committee on the consolidated text of draft conclusions 1 to 3, provisionally adopted by the Drafting Committee (A/CN.4/L.985), and provisionally adopted draft conclusions 1, 2 and 3, together with commentaries.
    • Furthermore, the Commission took note of draft conclusions 4 and 5, provisionally adopted by the Drafting Committee at the present session, which was contained in an additional report of the Committee (A/CN.4/L.985/Add.1).
  • Discussion in Plenary: 3625th, 3626th, 3627th, 3628th, 3629th, 3630th, 3631st and 3632nd meetings (16 to 25 May 2023), 3633rd (26 May 2023), 3635th (3 July 2023), 3642nd (21 July 2023) and 3651st, 3652nd, 3653rd, 3654th, 3655th, 3656th and 3657th (31 July to 4 August 2023 meetings.
  • ILC Report, A/78/10, 2023, chap. VII, paras. 59–127

General Assembly Action

  • Resolution 77/103 of 7 December 2022
    • Drew the attention of Governments to the importance for the International Law Commission of having their views on the various aspects of the topics on the agenda of the Commission, in particular on all the specific issues identified in chapter III of its report, regarding, inter alia, Subsidiary means for the determination of rules of international law.
    • Took note of the decision of the International Law Commission to include the topic…“Subsidiary means for the determination of rules of international law” in its programme of work.
    • Took note of the request of the Commission to the Secretariat to prepare a memorandum that would be particularly relevant for its future work on the topic “Subsidiary means for the determination of rules of international law”.
  • See the website of the Sixth Committee of the General Assembly and the topical summary of debate in the Sixth Committee (A/CN.4/755)

Final Outcome

Work in progress