Summaries of the Work of the International Law Commission
Subsidiary means for the determination of rules of international law
See also: Analytical Guide | Texts and Instruments
At its seventy-second session, in 2021, the Commission included the topic “Subsidiary means for the determination of rules of international law” in its long-term programme of work.1 A syllabus describing the possible overall structure of, and approach to, the topic was annexed to that year’s report of the Commission.2
The General Assembly, in resolution 76/111 of 9 December 2021, took note of the inclusion of the topic in the long-term programme of work of the Commission.
At its seventy-third session, in 2022, the Commission decided to include the topic “Subsidiary means for the determination of rules of international law” in its programme of work and appointed Charles Chernor Jalloh as Special Rapporteur for the topic.3 The Commission also requested the Secretariat to prepare a memorandum identifying elements in the previous work of the Commission that could be particularly relevant to the topic and surveying the case law of international courts and tribunals, and other bodies, which would be particularly relevant for its future work on the topic.4
At its seventy-fourth session, in 2023, the Commission had before it the first report of the Special Rapporteur,5 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.6 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 subsequently 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 session.
At its seventy-fifth session, in 2024, the Commission had before it the second report of the Special Rapporteur,7 as well as a memorandum by the Secretariat identifying elements in “the case law of international courts and tribunals, and other bodies, which would be particularly relevant for its future work on the topic”.8
The second report addressed, inter alia, the work of the Commission on the topic thus far and the views of States in the Sixth Committee; the nature and function of subsidiary means, focusing on judicial decisions as subsidiary means for the determination of rules of international law; the general nature of precedent in domestic and international adjudication, including the relationship between Article 38, paragraph 1 (d), and Article 59 of the Statute of the International Court of Justice; and the future programme of work on the topic. The Commission also had before it the memorandum it had requested from the Secretariat identifying elements in “the case law of international courts and tribunals, and other bodies, which would be particularly relevant for its future work on the topic”.9 Following the debate in plenary, the Commission decided to refer draft conclusions 6, 7 and 8, as presented in the second report, to the Drafting Committee, taking into account the comments made in plenary.10 The Commission provisionally adopted draft conclusions 4 and 5, which were provisionally adopted by the Drafting Committee at the seventy-fourth session. The Commission subsequently provisionally adopted draft conclusions 6, 7 and 8 together with commentaries.11
At the seventy-sixth session, in 2025, the Commission had before it the third report of the Special Rapporteur, 12 with the bibliography thereto.13 The third report addressed, inter alia, teachings, the works of expert bodies, resolutions of international organizations and intergovernmental conferences, the question of unity and coherence of international law, the relationship between "subsidiary means" for determining rules of law and "supplementary means" of interpretation, the structure of the draft conclusions and the future programme of work. Following the debate in plenary, the Commission decided to refer draft conclusions 9, 10, 11, 12 and 13, as presented in the third report, to the Drafting Committee, taking into account the comments and observations made during the plenary debate. The Commission also referred the draft conclusions adopted at previous sessions back to the Drafting Committee for the purpose of finalizing the first reading. The Commission received and took note of the report of the Drafting Committee containing draft conclusions 1 to 13,14 as provisionally adopted by the Drafting Committee on first reading.15 The adoption of draft conclusions 1 to 13 by the Commission was postponed to the seventy-seventh session, owing to the unavailability of time for the translation and consideration of commentaries, which had been prepared by the Special Rapporteur, as a consequence of the reduced length of the session.
The work of the Commission on the topic as described above has been proceeding in accordance with the resolutions adopted by the General Assembly under the item relating to the report of the International Law Commission.16
1 See Official Records of the General Assembly, Seventy-sixth Session, Supplement No. 10 (A/76/10), para. 302.
3 See Official Records of the General Assembly, Seventy-seventh Session, Supplement No. 10 (A/77/10), para. 240.
5 Document A/CN.4/760.
6 Document A/CN.4/759.
7 Document A/CN.4/769.
8 Document A/CN.4/765.
9 Document A/CN.4/765.
10 See Official Records of the General Assembly, Seventy-ninth Supplement No. 10 (A/79/10), para. 70.
12 Document A/CN.4/781.
13 Document A/CN.4/781/Add.1.
14 Document A/CN.4/L.1019.
15 See Official Records of the General Assembly, Eightieth Session, Supplement No. 10 (A/80/10), paras. 291–292.
16 General Assembly resolution 77/103 of 7 December 2022 and resolution 78/108 of 7 December 2023.