The Formation & Evidence of Customary International Law
The Secretariat invites the attention of all Member States to an important agenda item on the work programme of AALCO which is of immense significance for all Asian and African States. The International Law Commission is currently considering the topic “Identification of Customary International Law” –which is perhaps the most important topic that the commission has undertaken for study in the past three Decades. Despite the best of efforts for over five decades now, international law is yet to fully discard its West-Centric character. Perhaps the manifestation of this character expresses itself to the fullest extent in the context of customary international law.
Customary International Law binds all countries and for some decades now, the Western countries have asserted that the customs and traditions that they have followed in their intercourse with each other must be followed by other countries too, irrespective of other traditions. There is thus a need to assess and approach the proposed work of the ILC on this subject from this perspective.
The Commission has proposed to come out with a set of guidelines and conclusions that would help lawyers (both with and with no background of international law and international relations) to formulate a position on whether a particular rule of customary international law exists. The outcome of this exercise by the commission is hence significant both from a domestic and international points of views. So far, the Commission has charted out a schedule and scheme for work and according to the work plan proposed by the special rapportuer, the final product of the work on this topic is expected to be delivered by the year 2016. With less than two years in hands, there is a need to put together the best of efforts if the concerns of Member States are to be brought before the Commission.
The Special Rapporteur for this topic, Sir. Michel Wood, has already submitted a preliminary report on the topic and he has delineated the scope of his enquiry. It also seems that the Special Rapporteur seems to have taken certain positions and views with respect to the work done by the International Committee of the Red Cross on customary International Humanitarian Law and the International Law Association’s work on Customary International Law. Since the Special Rapporteur is essentially the person responsible for coordinating the work of the Commission on this subject, the positions that is taken by him needs to be examined closely and studied deeply to gather the impact of those conclusions on the Asian and African States. According to the work plan proposed by him, for the year 2014 discussion are proposed to be commenced on the two elements of customary international law: State practice and opinio juris, and the relationship between them ; the effects of treaties on customary international law ; and the role of international organizations.
All of these are topics of immense importance as his conclusions would have a lasting influence on the future development of international law and the conduct of all international relations. The Member States of AALCO represents civilizational development of at least two millennia and it is essential that our practices, customs and world vision are also represented adequately in the work of the Commission. Considering the very short time left to achieve this, it is essential to bring together the best of minds and efforts for this purpose. It is for this purpose that AALCO constitutes working group on this subject to study, analyze and make recommendations to the commission on this topic.
It is hoped that the working group can start functioning at the earliest possible time. The Member States are requested to cooperate towards this effort and nominate the best of legal minds to the Working Group without much delay.
Once the working group commences its action, the Secretariat would soon get back to Member States with questioners, requests for comments and opinions on specific questions of law. Cooperation with these initiatives is requested so that our views can be presented to the commission in a time bound manner so as to ensure that our voices are also heard and that our concerns are also addressed.