Customary international law and human rights

Abstract

The lecture addresses the International Law Commission (ILC)’s work on ‘Identification of customary international law’, with particular reference to human rights law. In 2016, the ILC adopted 16 draft conclusions, with commentaries. Draft conclusion 2 confirms the two-element approach (a general practice; acceptance as law). It is sometimes asserted rules of human rights are ‘special’, and that different criteria for the formation and identification of customary international law in this field are thus in order. In particular, it is sometimes suggested that in the field of international human rights law, one element may suffice in constituting customary international law, namely opinio juris. But this cannot be the case as long as we are dealing with what properly may be called “customary international law”. There may, however, be a difference in the application of the two-element approach. Among other issues discussed are the role of international organizations; the relationship between customary international law and treaties: the effect of resolutions of international organizations; judicial decisions and teachings; the persistent objector; and particular customary international law.