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American Journal of  
Society and Law ( AJSL)

The Role of  International Organizations in Shaping Customary International Law: An 
Analytical Study of  the 2018 ILC’s Draft Conclusions

Zeyad Jaffal1*

Volume 3 Issue 1, Year 2024
ISSN: 2835-3277 (Online)

DOI: https://doi.org/10.54536/ajsl.v3i1.2478
https://journals.e-palli.com/home/index.php/ajsl

Article Information ABSTRACT

Received: March 10, 2024

Accepted: April 15, 2024

Published: April 19, 2024

This research explores the influence and impact of  international organisations on the 
development and formation of  customary international law. It specifically examines the 
2018 Draft Conclusions issued by the International Law Commission (ILC). This paper 
has observed the implications of  these findings on the evolution of  peremptory norms, 
also known as jus cogens, and clarifies the scientific approaches used in their identification 
and legal consequences. Moreover, it emphasises alternative methodologies within 
the realm of  humanitarian action in influencing customary international law. Research 
offers a thorough comprehension of  which international organisations contribute to the 
development of  customary international law. The (ILC)’s 2018 Draft Conclusions shape 
customary international law by defining peremptory norms (jus cogens). State practice and 
opinio juris produce conventional rules, as these findings show. They also help evaluate 
governmental announcements, official publications, legal opinions, and diplomatic 
exchanges. These results must be assessed for compliance with customary law, state practice, 
and state behaviour. Alternative analyses like humanitarian intervention and R2P also shape 
customary international law. 

Keywords
Customary International Law, 
2018 Draft Conclusions, 
International Law Commission

1 Department of  Public International Law, Al Ain University, UAE
* Corresponding author’s e-mail: zeyadjaffal2021@gmail.com

INTRODUCTION
The growth of  customary international law serves as 
evidence of  the dynamic character of  global legal systems 
(Slagter & Van Doorn, 2022). CIL has been influenced by 
the historical practices and beliefs of  states that have a 
governing role under the behavior of  countries within the 
global sphere (Hunter, 2022). Customary international law, 
based on state histories and beliefs, has evolved through 
many stages. From ancient Greece, Rome, and China to 
mediaeval feudal structures and religious organisations, 
each age shaped governmental behavior (Klabbers, 2020). 
After two World Wars, the United Nations was founded, 
and several international treaties were ratified in the 20th 
century (Maas, 2019). Formalised diplomacy and nation-
state formation began in the early modern period after 
the Soviet Union collapsed, and international criminal 
courts and theories like the Responsibility to Protect 
emerged, causing legal and geopolitical changes. These 
historical stages influence CIL, reflecting nations’ actions 
and ideas worldwide. CIL was unwritten and has been 
derived from the practices as this has been accepted as law 
(Murphy, 2019).  The significant impact of  international 
organisations in creating and interpreting CIL should 
not be underestimated. These organisations have shown 
a prominent role in the domain of  global governance, 
possess a distinct capability to shape the conduct of  states 
and make substantial contributions to the establishment 
of  customary standards. 
One of  the organisation included as the most famous 
international organisation for collaboration and 
governance is the UN (Pershing, 2019). After World War 
II, it was founded in 1945 to promote world peace and 
security, human rights, social and economic progress, and 

national discourse. The UN has shaped human rights, 
humanitarian law, and environmental protection norms 
via several international treaties and conventions. The 
UN’s principal judicial institution, the ICJ, develops and 
applies international law (Helmersen, 2019). It resolves 
state-to-state legal disputes and advises the General 
Assembly, Security Council, and other UN organisations 
and specialised agencies on legal issues the ICJ helps 
create and clarify (CIL). World Trade Organisation 
(WTO) 1995-founded in which WTO regulates worldwide 
commerce. It facilitates trade agreement negotiations and 
dispute resolution(Palmeter et al., 2022). Also, WTO panels 
and Appellate Body rulings have shaped international 
trade law. The year 2018 was a significant turning point in 
this progression, as the (ILC) put forward its preliminary 
findings on CIL (Murphy, 2020). This research assessed 
the (ILC) that has effectively addressed the role of  
international organisations in the development of  (CIL) 
norms.
Additionally, judgments were reached by the (ILC) that 
have been aligned with the developing dynamics of  
international relations, legal norms and practices, and the 
consent of  states. The analysis of  the acts and practices of  
businesses is essential based on the five reports presented 
by the Special Rapporteur of  the Commission, Sir 
Michael Wood, over a nearly five-year long-term program 
of  work; this study describes and quantifies the role of  
international organisations in determining (CIL). Since 
1947, the UN General Assembly Subsidiary (ILC) has 
advanced international law. However, it analyses gaps in 
international law and drafts treaties or recommendations 
to fill them.  Customary international law development is 
an ILC priority; however, nations’ consistent and familiar 



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practices developed customary international law and the 
idea that it is legally obligatory (opino juris). Sir Michael 
Wood, a famous international legal scholar, was the ILC 
Special Rapporteur on “Identification of  Customary 
International Law” for almost five years (Wood, 2019). 
He performed a detailed investigation and delivered five 
reports on state practises, beliefs, foreign relations, and 
legal standards throughout his term. Sir Michael Wood 
focused on how international organisations shaped 
customary international law. International organisations, 
as essential players in global governance, may influence 
customary norms. This research examined and quantified 
their impact on customary international law (Wood 
& Sthoeger, 2022). The ILC, under Sir Michael Wood, 
examined commercial practises in the framework of  
international law to better understand how customary 
standards are formed and changed. 
The objective of  the 2018 Draft Conclusions was to 
provide a precise and all-encompassing formulation 
of  peremptory principles of  general international 
law. The objective of  this endeavour was to produce 
a comprehension of  the foundations that define jus-
cogens, therefore reducing uncertainty and establishing a 
robust basis for legal interpretation.

LITERATURE REVIEW
International Organizations and their Influence on 
Customary International Law
International organisations were political entities that 
help governments collaborate on common goals. As 
middlemen, they help states collaborate, harmonise 
policy, and solve global problems (Slagter & Van 
Doorn, 2022). Some argue that customary international 
law (CIL) has lost importance, however. The treaties’ 
substantial regulation, which dominates international 
law, contributes to this image (Wood, 2015). The  ILC 
of  the United Nations (UN) has just commenced its 
efforts in examining a subject matter now designated as 
“identification of  Customary International Law (Arévalo, 
2005).” The commission was acquainted with the 
challenges associated with endeavoring to “systematise 
the comparatively adaptable procedure through which 
norms of  (CIL) were established” when deciding to 
follow the subject matter. The challenges were included 
in which customary law creation was decentralised, which 
presents a difficulty unlike treaties, in which nations 
negotiate and accept customary law that has evolved 
organically from states’ consistent and familiar practises 
and the assumption that they are legally needed (Gazzini, 
2022). This decentralised process makes it hard to 
pinpoint when a customary norm crystallises. Customary 
law makes it challenging to discern consistent state 
practice across legal systems and cultures (Jovanović, 
2019). Customary law evolves with circumstances and 
governmental practices. These challenges demonstrate 
the complexity of  interpreting customary international 
law. International law operates in a decentralised manner 
(Roberts, 2001); therefore, the policies and regulations 
governing its establishment or implementation have 

been formulated comprehensively, and it was globally 
applicable (Scharf, 2013). CIL, referred to as customary 
law, has significant prominence as a prevailing mechanism 
for the establishment of  international legal norms within 
the framework of  this decentralised system (Scott & 
Carr, 1996). According to customary law, the consistent 
practises of  States throughout time have the potential to 
develop into legally enforceable norms that are applicable 
to all States. International Court of  Justice (ICJ), the 
principle of  good faith in CIL, entails that States can 
establish enforceable legal obligations upon other States 
through the act of  making unilateral declarations or doing 
unilateral actions (Hakimi, 2019).
One of  the examples of  the 2004 International Court of  
Justice (ICJ) Advisory Opinion on the Legal Consequences 
of  the Construction of  a Wall in the Occupied Palestinian 
Territory illustrates good faith under customary 
international law (CIL) (ICJadvisory). The ICJ reviewed 
Israel’s building of  the “Israeli West Bank barrier” in 
occupied Palestine. The Palestinian Authority stated 
that this barrier has breached international law. Israeli 
unilateral pronouncements and acts were part of  the case. 
Israel said it built the barrier in self-defence under Article 
51 of  the UN Charter. This case showed how vital good 
faith is in customary international law, according to the 
ICJ.  Governments’ unilateral acts create legal duties if  
they follow international law and are done in good faith. 
This case shows how governments might unilaterally 
create legal responsibilities under customary international 
law’s good faith concept. International organisations 
(IOs) are managed in the development and progression 
of  (CIL) since they are dynamic bodies operating within 
the framework of  international law. The responsibilities 
of  these organisations include the establishment of  
norms, the promotion of  these standards, and the giving 
of  authoritative explanations. Realism, as a theoretical 
framework, suggests the assumption that governments 
function as rational actors, with their behaviour being 
influenced by the pursuit of  power, national interest, 
and the equilibrium of  power within the international 
sphere (Rosenberg, 1994). This theory often offers a 
critical analysis of  the efficacy of  international law and 
institutions, asserting that nations primarily prioritise 
their self-interests, irrespective of  established legal 
frameworks (Guzzini, 2007). However, theoretical 
aspects provide helpful insights into the methods by 
which international organisations exercise their influence, 
therefore illuminating the complexity of  the delicate 
interaction between international organisations and 
customary international law (CIL).  The primary objective 
of  the draft Conclusions is to provide a comprehensive 
understanding of  the methodology used in determining 
CIL(law, 2023).A series of  recommendations that serve 
to highlight the significance of  state practice and opinio 
juris, among other relevant factors. The methodology 
used in this study combines meticulous legal analysis with 
an extensive examination of  data in order to determine 
the presence and specific characteristics of  customary 
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Conceptualizing International Organizations in a 
Legal Context
International Organisations have included entities 
that the voluntary affiliation of  sovereign nations or 
other international bodies has formed. International 
organisations are the legal identity with a distinct set 
of  rights, duties, and activities within the framework 
of  international law. In a legal context, International 
organisations are awarded with legal personality. The 
concept of  legal personality confers to international 
organisations a range of  entitlements, enabling them 
to participate in a diverse range of  legal pursuits. 
These rights include a diverse range of  essential tasks. 
International organisations function as platforms that 
promote collaboration, diplomatic discussions, and 
the process of  reaching decisions, thus resolving issues 
that arise among the governments of  member states. 
The conflict was considered as different acts that were 
considered within the international organisation in 
which acts of  international organisations conflicting 
with a peremptory norm have been considered (“Draft 
conclusions,”). In conclusion draft (16), it is vital to 
consider the implications of  obligations arising from 
resolutions, decisions, or other actions of  international 
organisations that may contradict peremptory norms 
of  general international law, known as jus cogens 
(Chasapis Tassinis, 2020). A peremptory rule of  general 
international law (jus cogens) prevails over any resolution, 
decision, or other act of  an international organisation 
that would otherwise have binding force, rendering them 
devoid of  responsibilities under international law in 
cases of  conflict. International organisations have shown 
significant diversity in terms of  their characteristics, 
goals, and range of  jurisdiction. Global organisations, 
such as the United Nations (UN), regional institutions 
like the European Union (EU), or specialised agencies 
with particular responsibilities, such as the World Health 
Organisation (WHO) or the International Monetary 
Fund (IMF), are examples of  many types of  international 
organisations. Every organisation is regulated by its 
charter, constitution, or statute, which delineates its 
functions, qualifications for membership, methods 
for decision-making, and legal structure. International 
organisations have distinct characteristics within the legal 
framework that have included Separate Legal Personality, 
limited powers, Autonomy and independence (Gutner & 
Thompson, 2012). Corporations are capable of  having 
legal personality, giving them the ability to participate 
in contractual arrangements, begin legal processes, be 
susceptible to legal actions, and autonomously do many 
other legal activities (Crawford, 1995). In addition, 
member states provide people with the capacity to 
obtain and exercise ownership over assets, as well as to 
participate in the advantages and exemptions within their 
respective territorial jurisdictions.
Moreover, international bodies have also shown an 
essential role in the promotion, interpretation, and 
enforcement of  international law. The recognition of  

international organisations with rights and obligations 
in the framework of  international law has been a widely 
considerable period (Gray, 2018). States can engage in 
treaty-making, assume international obligations, and seek 
legal remedies against both member and non-member states 
for breaches of  international law(Kristina and Daugirdas, 
2020). In this way, the inquiry into the involvement 
of  international organisations in the development of  
CIL has historically received less consideration until 
recent times. International organisations were actively 
engaged in fulfilling functions under two distinct sets 
of  conditions in; which the first category considered 
customary international law, which governs the conduct 
between states and international organisations, as well as 
among international organisations.  According to Article 
(24), the commission has considered examining strategies 
and approaches to enhance the accessibility of  evidence 
pertaining to customary international law (“Codification 
of  international law article (24),”). The compilation and 
dissemination of  relevant documents pertaining to the 
practices of  states, as well as the judgments rendered 
by national and international courts on matters of  
international law. The commission is further obligated 
to submit a report to the General Assembly detailing 
its findings and recommendations on this subject. The 
second scenario is in which international organisations 
act like those of  nations that were exposed to potential 
international liability, similar to states. Therefore, as 
an example, the United Nations can make a valuable 
contribution to international humanitarian law by means 
of  its peacekeeping endeavors.

Theoretical Perspectives on International Organizations’ 
Role in CIL
The International Law Commission (ILC)
During the early 1980s, the United Nations Institute 
for Training and Research (UNITAR) sponsored 
research aimed at stimulating a reassessment of  the 
commission’s position within the United Nations (UN) 
system (Commission, 1971). As part of  this study, 
the International Law Commission (ILC) enhanced 
its mandate by using several methodologies, including 
restatement and analysis (Franck & ElBaradei, 1982). 
During three decades, the International Law Commission 
(ILC) primarily focused its efforts on international law 
and the provision of  draft treaties (Gaja, 2010). The ILC 
continues to fulfil its mandate by actively engaging in the 
advancement of  international law, addressing a diverse 
range of  subjects from different modalities (McCaffrey, 
2009). Also, the (ILC) has strengthened its contribution 
to international law by adapting the final format of  its 
work, promoting a more adaptable and compelling 
discourse on the subject matter. The International Law 
Commission (ILC) restricts the outcomes of  its efforts 
to an official reiteration of  legal perspectives by selecting 
soft-law instruments (McRae, 2012). This transition is 
indicative of  broader patterns in the field of  international 
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to garner the attention of  the international community on 
the expanding range of  global issues (Forteau, 2015).  The 
ILC is a highly regarded subsidiary body of  the United 
Nations (UN), created with the primary objective of  
formulating and systematising international law (Bourne, 
1992). Established in the year 1947, the International 
Law Commission (ILC) is composed of  highly esteemed 
legal professionals who possess extensive knowledge and 
specialisation in several domains of  international law. 
The primary purpose of  this entity is to examine and 
analyse new legal matters, discover established practices, 
and develop preliminary agreements or principles that 
may later be acknowledged as customary international 
law. The scope of  the commission’s activities spans a 
broad range of  legal subjects, such as the concept of  
state sovereignty, the protection of  human rights, the 
principles governing the formation and interpretation of  
treaties, and the mechanisms for resolving international 
conflicts. The International Law Commission (ILC) 
employs a meticulous procedure that encompasses the 
identification of  subjects, comprehensive investigation, 
and the formulation of  preliminary articles. The 
efforts of  the International Law Commission (ILC) 
have a comprehensive and authoritative structure for 
international legal standards, exerting a considerable 
impact on the global advancement and implementation 
of  international law (Cano, 1989).
Moreover, the experience and intellectual contributions 
of  this entity are of  great significance in guiding nations, 
practitioners, and international courts when dealing with 
intricate legal matters on a worldwide scale. During its 70th 
session in 2018, the United Nations International Law 
Commission (ILC or Commission) approved two drafts 
pertaining to the sources of  international law (Tomuschat, 
2006). These drafts include the draft conclusions on 
the Identification of  Customary International Law and 
the draft Conclusions on Subsequent Agreements and 
Subsequent Practices in Relation to the Interpretation of  
Treaties (Yejoon, 2020). Both subjects are presented as 
“conclusions” that are not meant to be converted into 
comprehensive treaties. Regarding the subject matter of  
Subsequent Agreements and Subsequent practice in the 
context of  Treaty Interpretation, the ultimate version of  
the draft conclusions has been characterised as possessing 
a “guiding function.” Its objective is to reaffirm and 
explain the law rather than seeking to supplant an existing 
convention or potentially evolve into a convention in its 
own right.

Role and Functions of  the ILC
The primary objective of  the International Law 
Commission is to facilitate the gradual development of  
international law and its systematic organisation with the 
help of  the process of  codification (Watts, 1999). The 
primary focus of  the commission is on matters pertaining 
to public international law, while it retains the ability to 
engage with issues related to private international law 
(Watts, 1999). The function of  international law” is 

employed under the convenience in which the process of  
formulating draft conventions pertaining to matters that 
have not yet been addressed by international law or that 
have not been adequately developed in the practices of  
sovereign states(Watts, 1999). The term “codification of  
international law” is often used to refer to the process 
of  formulating and organising norms of  international 
law in specific areas that have previously seen significant 
State practice, precedent, and doctrine. In Article (16), 
when the General Assembly submits a proposal to the 
commission for the gradual advancement of  international 
law, the commission is expected to adhere to a method 
that is generally outlined as follows: (a) The committee 
was designated with one of  its members to serve as the 
Rapporteur (Ramcharan, 1977). (b) The committee will 
develop a work plan. (c) The committee will distribute 
a questionnaire to the governments and request them 
to provide data and information pertaining to the topics 
outlined in the work plan within a specified timeframe. 
(d) The committee may assign certain members to 
collaborate with the Rapporteur in drafting documents 
while awaiting responses to the questionnaire. (e) The 
committee has the option to seek advice from scientific 
institutions and individual experts, who are not required 
to be citizens of  United Nations member states. The 
Secretary-General will allocate funds, as needed and within 
budgetary constraints, to cover the expenses associated 
with these expert consultations. The commission will 
review the drafts put forth by the Rapporteur. Once 
the commission deems a draft to be satisfactory, it will 
request the Secretary-General to publish it as an official 
Commission document. The Secretariat is responsible for 
ensuring the dissemination of  this document, together 
with any relevant explanations and supporting materials 
deemed suitable by the commission. The publication will 
include all the information provided to the commission in 
response to the questionnaire mentioned in subparagraph 
(c) above. The commission encompasses an invitation 
to the Governments to provide their feedback on this 
document within a reasonable timeframe. Subsequently, 
they will prepare a final draft along with an explanatory 
report, which will be presented to the commission for 
review and approval. Finally, the commission will transmit 
the adopted draft, along with its recommendations, to 
the General Assembly through the Secretary-General. In 
article (17), the commission is responsible for examining 
proposals and draft multilateral conventions that are 
submitted by various entities, including Members of  
the United Nations, the principal organs of  the United 
Nations (excluding the General Assembly), specialised 
agencies, and official bodies established through 
intergovernmental agreements. These proposals aimed to 
promote the gradual advancement of  international law 
and its systematic organisation. The Secretary-General 
transmits these proposals to the commission for this 
specific purpose. Suppose the commission determines 
it appropriate to examine proposals or drafts in such 
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outlined as follows: (a) The Commission will develop a 
work plan, analyse the proposals or drafts, and compare 
them with any other relevant proposals or drafts; (b) 
The Commission will distribute a questionnaire to all 
United Nations Members, as well as the relevant organs, 
specialised agencies, and official bodies mentioned earlier, 
requesting their comments within a reasonable timeframe; 
(c) The Commission has presented a report containing its 
findings and recommendations to the General Assembly. 
Prior to proceeding, the commission chooses to provide 
an interim report to the relevant organ or agency that 
has submitted the proposal or draft. In the event that the 
General Assembly invites the commission to continue its 
work based on a proposed plan, the procedure described 
in Article 16 above shall be followed (Article17). 

Historical Significance of  the ILC’s Work in 
International Law (Article17)
The International Law Commission (ILC) in 2018 achieved 
an advancement in its continuous effort to systematise 
the fundamental concepts of  customary international 
law (Harrison, 2013). The conclusions have a role in 
establishing a complete framework for comprehending 
and implementing customary international law, which 
serves as a fundamental pillar of  the global legal system 
(Boucher, 2011). Moreover, it examines the enduring 
difficulties associated with the persistent objector rule 
and the significance of  state practice and opinio juris in 
the evolution of  customary law. 

Draft Conclusion 1 Scope
Draft Conclusion 1 is essential to understanding 
customary international law’s structure and concepts. The 
method used to identify customary norms. Customary 
law is a system of  legal principles that have formed 
over time via continuous state practice and a widespread 
belief  in their obligatory nature (Murphy, 2020). Draft 
Conclusion 1 explains the criteria and methods used 
to define customary international law to help legal 
practitioners, scholars, and policymakers understand 
its complexity. The declaration proposes a strategy for 
making customary rules mandatory, improving the global 
legal environment. Draft Conclusion 1 provides a solid 
basis for comprehending customary international law 
worldwide. Case Concerning the Application of  the 
Convention on the Prevention and Punishment of  the 
Crime of  Genocide” between Croatia and Serbia in 
which the legal proceedings against Serbia, claiming that 
Serbia had contravened the provisions of  the Genocide 
Convention in the context of  the Croatian War of  
Independence that transpired in the early 1990s (Van Den 
Herik, 2015). The case included a comprehensive analysis 
of  the facts pertaining to state practice and opinio juris. 
The (ICJ) included instances of  large-scale executions, 
forced relocation of  communities, and many other 
actions that were purportedly indicative of  genocide. The 
court further scrutinised diplomatic communications, 
official declarations, and measures undertaken by both 

Croatia and Serbia during the war. Process of  evolution 
throughout time as a result of  the consistent behavior 
shown by governments. 

Draft Conclusion 2 Two Constituent Elements
The 2018 International Law Commission’s Draft 
Conclusion 2 highlights customary international law’s 
two main concepts (Jalloh, 2020). For a standard to 
be considered customary international law, it must be 
consistent and pervasive, and there must be a shared 
conviction that it is legitimate. This conclusion examines 
how state acts affect legal responsibility perception. This 
shows that sheer repetition or usual practice is insufficient; 
states must agree that the activity is essential under 
international law. Legal professionals and academics 
use this approach to evaluate and distinguish customary 
norms. 
Draft Conclusion 2 is the “Case Concerning the Barcelona 
Traction, Light and Power Company, Limited (Belgium v. 
Spain)” convinced by the International Court of  Justice 
(ICJ) in 1970. In the present scenario, Belgium initiated 
legal proceedings against Spain, claiming that Spain had 
contravened international law by its interference in the 
rights of  a Belgian firm known as Barcelona Traction, 
Light and Power Company (Flemming, 1965). The case 
included a comprehensive analysis of  facts pertaining 
to the consistent and widespread implementation of  a 
specific practice, together with a collective belief  in its 
legitimacy. The (ICJ) conducted a thorough analysis of  
many factors, including the legal standing of  businesses 
within the framework of  international law, as well as 
the measures undertaken by Spain. The court analysed 
diplomatic communications, judicial processes, and 
public declarations issued by both Belgium and Spain. 
The ruling in the Barcelona Traction case highlighted the 
elements of  customary international law, which need the 
presence of  a consistent and widespread practice coupled 
with a collective acceptance of  the practice’s validity. The 
case has strengthened the credibility and consistency of  
customary international law within the international legal 
framework, in accordance with Draft Conclusion 2
.
Draft Conclusion 3 Assessment of  Evidence For The 
Two Elements
Draft Conclusion 3, which offers significant evaluation 
in order to establish the two essential components of  
customary international law (Giza et al., 2013). These 
factors include the broader contextual framework, the 
intrinsic characteristics of  the rule under consideration, 
and the particular conditions in which the relevant 
evidence is positioned. By emphasising the need 
for a comprehensive strategy, however, customary 
international law cannot be universally applied. Instead, it 
requires a comprehensive examination that considers the 
distinct complexities of  each circumstance. Moreover, 
Draft Conclusion 3 emphasises the separate assessment 
of  each component, namely general practice and opinio 
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meticulousness necessary for demonstrating the presence 
and substance of  customary standards, guaranteeing that 
each facet is subject to distinct scrutiny. 
The “Case Concerning the Application of  the 
Convention on the Prevention and Punishment of  the 
Crime of  Genocide” between Bosnia and Herzegovina 
and Serbia. Bosnia and Herzegovina initiated legal 
proceedings against Serbia, claiming that Serbia had 
contravened the provisions of  the Genocide Convention 
in the Bosnian war that transpired in the 1990s. The case 
included a comprehensive analysis of  facts pertaining to 
both customary practice and opinio juris (Cernic, 2007). 
The (ICJ) meticulously examined an extensive body of  
evidence, including instances of  large-scale executions, 
forced relocation of  communities, and other actions 
that were purportedly indicative of  genocide. The court 
further scrutinised diplomatic communications, official 
declarations, and measures undertaken by both Bosnia 
and Herzegovina and Serbia during the duration of  the 
war. The ruling rendered in the case pertaining to the 
Genocide Convention underscores the need to conduct 
a thorough evaluation of  evidence in order to create 
customary international law. 

Draft Conclusion 4 Requirement of  Practice
Draft Conclusion 4, as stated by the International Law 
Commission in 2018, highlights the crucial significance of  
practice in the establishment of  customary international 
law (Murphy, 2015). The statement posits that the conduct 
and behavior of  nations in the international arena 
mostly form the foundation of  customary standards. 
Furthermore, Draft Conclusion 4 recognises that there are 
some circumstances in which the actions of  international 
organisations have a role in the development or expression 
of  customary international law. The changing function of  
international organisations introduces an additional level 
of  intricacy to the customary law domain. Significantly, 
the judgment clarifies that the activities undertaken by 
non-state actors alone do not create the practice that 
forms customary law. 
The International Court of  Justice (ICJ) rendered a 
decision in 2003 on the Case Concerning Oil Platforms 
(Islamic Republic of  Iran v. United States). In this 
particular case, Iran initiated legal proceedings against the 
United States, challenging that the actions carried out by 
the U.S. military, which included the destruction of  Iranian 
oil installations during the Iran-Iraq War, contravened 
established norms of  international law (Garwood-
Gowers, 2004). These norms encompassed principles 
pertaining to state sovereignty and the prohibition of  
using force. The judgement rendered in the Oil Platforms 
case serves as a notable example that has highlighted 
the importance of  state practice within the framework 
of  customary international law, as underscored in Draft 
Conclusion 4. 

Draft Conclusion 5: Conduct of  the State as State 
Practice
The conclusion, 5, is a declaration that presents a precise 

and concise elucidation of  the parameters that define 
state practice in the context of  customary international 
law (Bowett, 1998). The statement unambiguously asserts 
that the concept of  state practice comprises the range 
of  acts and behaviour shown by a state across several 
domains, such as the executive, legislative, judicial, and 
other functional aspects (Coombes & Stokes, 1985).
The conclusion functions as a critical principle for legal 
professionals and academics, providing a definite structure 
for recognising and assessing the actions of  states within 
the framework of  customary international law. “Case 
Concerning Pulp Mills on the River Uruguay” (Argentina 
v. Uruguay) In this particular instance, Argentina initiated 
legal proceedings against Uruguay, claiming that Uruguay’s 
endorsement of  the establishment and functioning of  
pulp mills along the River Uruguay contravened many 
international accords and principles, those pertaining 
to environmental preservation (McIntyre, 2010). The 
ICJ reflected on the acts and behaviour of  Uruguay in 
authorising and the establishment and functioning of  
the pulp mills. The court has analysed the decisions and 
measures taken by the executive, legislative, and regulatory 
authorities of  Uruguay in relation to the pulp mills project. 
The ruling in the Pulp Mills case serves as an illustration 
of  how the actions of  a state in many spheres, such as the 
executive, legislative, and regulatory realms, contribute 
to the establishment of  state practice under customary 
international law. The case is in accordance with the ideas 
defined in Draft Conclusion 5, which underscores the 
need to comprehend and evaluate the conduct of  nations 
within the context of  customary international law.

Draft Conclusion 6
Draft Conclusion 6 of  the 2018 International Law 
Commission shows how customary international law 
may affect state behavior (Deplano, 2017). The practice 
encompasses physical and verbal aspects, according 
to the statement. In some instances, a state’s inactivity 
might be considered behaviour. A grasp of  practice 
highlights its flexibility and variety. Diplomatic activities, 
communication, international resolutions and treaties, 
presidential actions, legislative and administrative 
measures, and domestic court opinions are covered in the 
conclusion. Draft Conclusion 6 shows that state practice 
is complicated and essential to international law and 
customary rules.
The International Court of  Justice (ICJ) rendered a 
decision in 1986 on the “Case Concerning Military 
and Paramilitary Activities in and against Nicaragua” 
(Nicaragua v. United States)  (Leigh, 1984). The 
International Court of  Justice (ICJ) examined various 
state acts and measures, including military operations, 
assistance provided to armed organisations, diplomatic 
correspondences, and public declarations made by 
government officials. The court further examined 
the reactions and responses of  other governments to 
these activities. The Nicaragua case judgement serves 
as an illustration of  how state practice involves a wide 
range of  elements, including both physical and verbal 



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manifestations. This case highlights the diverse nature of  
state practice and its pivotal contribution to the formation 
of  customary international law in accordance with the 
concepts elucidated in Draft Conclusion 6.

Draft Conclusion 7: Assessing a State’s Practice
Draft Conclusion 7, a crucial 2018 International Law 
Commission statement, provides essential information 
on analysing state action under customary international 
law (Leigh, 1984). It emphasises evaluating a state’s 
operations holistically, including all relevant data. This 
comprehensive view explains the state’s connection with 
customary norms. This recognition of  official activities 
highlights customary law formation’s intricacy and need 
for examination; however, this conclusion helps study 
global legal traditions. The International Court of  Justice 
(ICJ) extracted a decision in 1997 on the “Case Concerning 
the Gabcíkovo-Nagymaros Project” between Hungary 
and Slovakia (Tomka, 2019). In the present case, Hungary 
initiated legal proceedings against Slovakia with regard 
to a hydrological undertaking concerning the Danube 
River. Hungary contended that the acts undertaken by 
Slovakia were in contravention of  established norms 
of  international law, including principles pertaining 
to environmental preservation as well as regulations 
governing international watercourses.
The International Court of  Justice (ICJ) conducted a 
comprehensive analysis of  the activities, policies, and 
conduct of  both nations with respect to the project. The 
analysis included several facets, including the original 
agreements, later changes, and the practical execution of  
the project. The court placed significant emphasis on the 
need to conduct a thorough evaluation of  governmental 
practice when evaluating the establishment of  customary 
standards. The instance of  the Gabcíkovo-Nagymaros 
Project underscores the need to comprehensively review 
a state’s activities in order to determine their compliance 
with customary international law. 

Draft Conclusion 8: The Practice Must Be General
The 2018 International Law Commission’s Draft 
Conclusion 8 provides an essential requirement for 
customary international law recognition (Murphy, 2020). 
This practice should also be constant and uniform. Draft 
Conclusion 8 emphasises that the practice’s universality is 
more critical than its time requirement for customary law. 
This result gives legal practitioners and researchers a clear 
framework for assessing state activity under customary 
international law. Draft Conclusion 8 emphasises the 
need for broad and representative practice in the creation 
and acceptance of  global legal customary standards. The 
International Court of  Justice (ICJ) extracted a decision 
in the case of  the “North Sea Continental Shelf  Cases” 
in 1969. The (ICJ) in this instance, deliberated upon 
the differentiation of  the continental shelf  between 
Germany and Denmark, as well as between Germany and 
the Netherlands (Klabbers, 2023). The parties involved 
in the dispute drew upon a range of  treaties, accords, 

and established principles of  customary international 
law in order to substantiate their respective assertions. 
The court analysed the consistent practice seen across 
nations in the delineation of  their continental shelves, 
determining that such practice had a uniform nature. 
The ruling of  the court served to affirm the customary 
international law norm that coastal nations had sovereign 
rights pertaining to their continental shelves. The North 
Sea Continental Shelf  Case serve as a prime illustration 
of  how the establishment of  customary international 
law may be achieved by the combination of  consistent 
and uniform state practise, together with the presence of  
opinio juris. 

Draft Conclusion 9: Requirement of  Acceptance as 
Law (Opinio Juris)
Draft Conclusion 9, a necessary declaration from the 
2018 International Law Commission, states that opinio 
juris is essential to customary international law(Sender & 
Wood, 2017). It states that a widespread practice must be 
performed with a true feeling of  legal responsibility or 
suitable to be deemed customary law. Draft Conclusion 
9 clearly states that legal practitioners and academics 
must recognise the legal duty underpinning state activity. 
Draft Conclusion 9 emphasises the importance of  legal 
responsibility in establishing customary international 
law. The “Lotus Case” (1927), which was decided by the 
Permanent Court of  International Justice (PCIJ), the 
precursor of  the International Court of  Justice (ICJ), 
serves as a relevant case that highlights the importance 
of  opinio juris in customary international law (Anil et al., 
2021). The Lotus Case pertains to a maritime incident 
that transpired on the high seas involving two vessels, 
namely the French ship named Lotus and the Turkish 
ship named Bozkurt. This accident tragically led to the 
loss of  lives among the crew members of  both vessels. 
The central focus of  the case principally was the issue 
of  jurisdiction and the validity of  the acts undertaken by 
the French authorities. As per the case of  the findings 
of  the PCIJ, it was determined that in situations where 
there is no explicit provision in a treaty or established 
customary rule to the contrary, a state has the authority to 
exercise jurisdiction over actions that occur on the high 
seas. The Lotus Case is widely regarded as a substantial 
illustration of  the influential role played by opinio juris 
in the determination of  customary international law. 
The concepts defined in Draft Conclusion 9 highlight 
the significance of  the legal obligation that forms the 
basis of  state conduct in the establishment of  customary 
international law.

Draft Conclusion 10: Forms of  Evidence of  
Acceptance as Law (Opinio Juris)
Draft Conclusion 10, a critical statement from the 2018 
International Law Commission, lists the many sorts of  
opinio juris evidence that might support a common 
practice as law. It stresses the variety of  ways to convey 
acceptance (Bílková, 2020). These may include state 



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pronouncements, official publications, legal views from 
government authorities, diplomatic interactions, judicial 
judgments, treaty terms, and international resolution 
or intergovernmental conference behavior. Draft 
Conclusion 10 further notes that a state’s inability to 
respond to practice from the evidence of  opinio juris, if  
the circumstances allow it and the states are able to do so. 
This result gives legal practitioners and researchers a rich 
framework to evaluate customary rules in the global legal 
arena. Draft Conclusion 10 emphasises the evidence in 
opinio juris and customary international law.
The “Nicaragua v. United States” case before the 
International Court of  Justice illustrates Draft Conclusion 
10 of  the 2018 International Law Commission on kinds 
of  proof  of  adoption as law (opinio juris). In 1984, 
Nicaragua sued the US for violating international law, 
including supporting armed organisations in Nicaragua. 
Nicaragua’s contention that U.S. activities breached 
customary international law was crucial (Onate-Madrazo, 
2022). The ICJ examined public declarations, diplomatic 
communications, official records, and US government 
acts and policies to identify customary rules. The court 
also examined other states’ responses to similar measures 
(Abello Galvis, 2019). This case presented how evidence 
establishes opinio juris and customary international law, 
according to the ICJ. It stressed that a state’s declarations, 
policies, and actions, as well as other states’ responses, 
may shape customary norms. The case shows how 
complicated opinio juris evidence evaluation is and how 
complex customary international law is. 

Draft Conclusion 11: Treaties
Draft Conclusion 11, 2018 International Law Commission 
examines treaties and customary law(Villiger, 1997). The 
treaty rule can create a new customary international law 
rule if  it (a) encapsulates a pre-existing customary norm 
at the time of  its conclusion, (b) contributes to the 
crystallisation of  a customary norm already in formation, 
or (c) creates a general practice accepted as law (opinio 
juris). Draft Conclusion 11 observed that each situation 
must be examined individually and that a rule in numerous 
treaties does not imply customary international law.  
Conclusion 11 of  the 2018 study conducted by the 
International Law Commission pertains to the case 
“North Sea Continental Shelf  Cases” (1969). however, 
in this case, the International Court of  Justice (ICJ) 
reflected on the demarcation of  the continental shelf  
boundaries between Germany and Denmark, as well 
as between Germany and the Netherlands(Klabbers, 
2023). The parties involved in the matter placed their 
trust in a range of  treaties in the Geneva Convention 
on the Continental Shelf. The judicial body was focused 
on a decision affirming that the Geneva Convention 
has effectively established customary international law 
pertaining to the legal standing of  the continental shelf. 
The analysis revealed that the convention effectively 
included customary laws that were already in existence at 
the time of  its finalisation, thereby serving to validate the 

usual norm. The provisions established by the agreement 
were shown in the development and consolidation of  
the customary international law principle concerning the 
rights and jurisdiction pertaining to the continental shelf. 
This particular case serves as an illustration of  how a 
treaty, such as the Geneva Convention on the Continental 
Shelf, may assume a crucial function in the advancement 
and validation of  customary international law. The ruling 
in the North Sea Continental Shelf  Cases is in accordance 
with the ideas elucidated in Draft Conclusion 11, 
underscoring the capacity of  treaties to impact customary 
international law.

Draft Conclusion 12: Resolutions of  International 
Organisations and Intergovernmental Conferences
Draft Conclusion 12, a significant 2018 International 
Law Commission statement, discusses international 
Organisation and intergovernmental conference decisions 
under customary international law (Sybesma-Knol, 1985). 
It establishes that a resolution cannot unilaterally create 
customary international law. However, such a decision 
may prove the existence and content of  a customary 
norm or contribute to its development. Also, Draft 
Conclusion 12 emphasises that a resolution provision can 
be considered customary international law if  it aligns with 
a widely accepted general practice and the belief  in its 
legal obligation. 

Draft Conclusion 13: Decisions of  Courts and Tribunals
Draft Conclusion 13, a key 2018 International Law 
Commission statement, discusses court and tribunal 
rulings under customary international law. International 
court and tribunal rulings, notably those from the 
International Court of  Justice, help build and interpret 
customary rules. Draft Conclusion 13 further notes 
that national court rulings used to determine customary 
international law standards where relevant and 
appropriate. This result gives legal practitioners and 
researchers a clear procedural framework for using court 
judgments to analyse global customary standards. 

Draft Conclusion 14: Teachings
The teachings of  highly competent publicists from diverse 
states may help determine customary international law, 
according to Draft Conclusion 14. This has distinguished 
legal professors from many nations on customary rules. 
Draft Conclusion 15 adds “persistent objector” in 
customary international law. It says a customary norm is 
not obligatory on a state if  it clearly disagrees with its 
growth throughout its formative phases and maintains 
this objection consistently. This emphasises consent and 
respects a state’s opposition to customary law until it 
withdraws or modifies it.

Draft Conclusion 16: Particular Customary 
International Law
According to Draft Conclusion 16, a critical declaration 
from the 2018 International Law Commission, a rule of  



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special customary international law applies solely to a 
limited number of  states, whether regionally, locally, or 
elsewhere (Charney, 1986). The draft has demonstrated 
the existence and substance of  such a norm; it must be 
determined if  the states concerned have a consistent 
practice and consider it as legally enforceable. This result 
gives legal practitioners and researchers a clear framework 
for identifying and assessing customary international law 
in a given group of  nations.

Background and Contextualizing the 2018 Draft 
Conclusions
The 2018 draft conclusions put out by the commission are 
essential elements of  its deliverables, and it is vital to take 
them into account in conjunction with the accompanying 
commentary. The findings pertain primarily to the 
peremptory rules of  general international law, usually 
known as juscogens (Tladi, 2021). These standards 
have garnered growth from international and regional 
tribunals, national courts, States, and other relevant 
actors. These standards require the establishment of  a 
methodical approach to identify them and comprehend 
their legal consequences. The conclusion (1) functions 
delineating these findings have highlighted their focus 
on the identification and legal consequences of  jus 
cogens. The results primarily pertain to methodological 
techniques, abstaining from digging into the substance of  
specific peremptory rules.
Furthermore, many States were illustrative instances 
without suggesting complete support by the commission. 
The primary focus of  these preliminary conclusions 
pertains to the procedure of  ascertaining the peremptory 
nature of  a norm in general international law. The primary 
focus of  the draft findings is on technique in relation 
to identification and legal ramifications. The resources 
that are cited as instances of  practice, which include 
the perspectives of  States, are used to demonstrate the 
approach employed in identifying and understanding the 
implications of  peremptory rules of  general international 
law (jus cogens). The Draft Conclusions demonstrate 
customary international law’s adaptability to global 
situations overall; this landmark 2018 ILC document 
guides academic and practical law, reaffirming the 
commission’s commitment to global legal uniformity and 
effectiveness (Laina, 2018).

METHODOLOGY
Process of  Formulating Draft Conclusions
The development of  the 2018 Draft Conclusions by the 
International Law Commission (ILC) was marked by a 
meticulous and transparent approach, demonstrating 
the commission’s (McDougal, 1967). The process used 
by the International Law Commission (ILC) included 
a structured approach to doing research, with the help 
of  empirical review and fostering agreement. The team 
conducted thorough examinations of  pertinent legal 
literature, state practices, and jurisprudence, establishing 
a strong basis for the findings.  The inclusion of  

stakeholders and the conduct of  discussions were 
important in exploring the credibility and validity of  the 
2018 Draft Conclusions (Silva et al., 2019). 
One of  the examples included an international 
conference that includes stakeholders and the 2018 draft 
Conclusions’ legitimacy and validity. Many governments, 
environmental NGOs, scientific organisations, and 
industrial groupings participated in the 2018 Draft 
Conclusions on Climate Change discussions (Evangelidis 
& O’Donnell, 2019). They shared climate-related 
opinions and concerns in comprehensive conversations. 
These stakeholders reviewed the draft findings, provided 
critical advice, and helped ensure that it represented a 
comprehensive agreement among varied benefits.  The 
International Law Commission (ILC) contributes to 
an array of  stakeholders that includes nations, legal 
professionals, and international organisations (Nolte, 
2019). The use of  an inclusive approach allowed the 
consideration of  a wide range of  experiences, enhancing 
the overall quality and practicality of  the results. The 
commission proactively initiated communication with 
governments through diplomatic channels, soliciting their 
input and perspectives. Furthermore, the International 
Law Commission (ILC) engaged in discussions with 
many international organisations and legal professionals, 
seeking their valuable insights about different facets of  
peremptory standards in the realm of  general international 
law (Voulgaris, 2022). 

RESULTS AND DISCUSSION
The evaluation of  the compatibility between the draft 
findings of  the International Law Commission (ILC) 
and established customary international law necessitates 
an analysis of  their conformity with prevailing principles 
and practices(Weisburd, 2005). A thorough examination 
of  both the past actions of  states and their established 
legal beliefs and opinions. The concept of  historical state 
practice refers to the evident activities and conduct of  
states throughout history, which provide concrete proof  
of  customary standards (Watson, 1984). 
Customary law may create universally enforceable laws, 
but its formation procedures enable governments to 
avoid forming norms by becoming persistent objectors 
(Fon & Parisi, 2009). This kind of  objection requires 
the objecting state to publicly reject a growing practice 
before it becomes a binding custom. The concept of  
opinio juris, which refers to a particular practice that 
was necessary under international law, contributes an 
essential element to this evaluation(Moulin, 2023).  The 
objective was to analyse the state practise and opinio 
juris in South Asia in order to evaluate the presence of  
support for a developing customary international law 
(CIL) duty known as “China’s Stealthy Sovereignty.” This 
obligation affects avoidance, reduction, or prevention 
of  statelessness and imposes a responsibility on these 
states to address the issue of  statelessness within the 
area (Immanuel, 2023). In pursuit of  this objective, there 
was a widespread existence of  statelessness in the South 



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Asian area. However, there is a growing body of  evidence 
indicating that state practice and opinion juris in the 
region are increasingly endorsing the duty to refrain from, 
minimise, or preempt statelessness. 
The “National Register of  Citizens (NRC) Assam 
Case” in India was one of  the case focused on the 
responsibility to avoid statelessness in South Asia(Hari 
& Nagpal, 2022). In the year 2019, the Indian state of  
Assam successfully concluded the process of  updating its 
National Register of  Citizens (NRC), with the primary 
objective of  identifying persons who were unable to 
provide sufficient evidence to substantiate their lawful 
resident status inside the state. The Indian government 
came under attention due to allegations of  human rights 
breaches and worries of  statelessness. The procedure in 
question had the potential to leave people who had been 
living in Assam for several generations without a legally 
recognised nationality. Although the case did not establish 
a binding legal precedent, it effectively emphasised the 
significance of  statelessness and the need to implement 
comprehensive legislative frameworks to protect people’s 
entitlements to nationality.
Furthermore, deliberations on the obligation of  states to 
abstain from engaging in activities that may potentially 
result in statelessness, in accordance with the norms of  
international law. The presence of  state practise, and 
opinio juris originating from South Asia might enhance 
the argument that a nascent customary international law 
duty of  this sort exists, namely within the South Asian 
area. The presence of  this customary international law 
rule will require South Asian governments to confront the 
issue of  statelessness within the area actively. The draft 
findings’ alignment with the collective comprehension 
of  customary standards among nations is of  utmost 
importance.  The Universal Declaration of  Human 
Rights is widely seen as a comprehensive embodiment of  
customary international law pertaining to marine affairs, 
and it also advances the legal framework governing the 
world’s oceans on this foundation (Li et al., 2023). The 
regulations governing the demarcation of  the outer 
boundaries of  the Exclusive Economic Zone (EEZ)  
with customary international law. By using the framework 
of  state practice and opinio juris, a thorough assessment 
was conducted to ascertain the extent to which the 
draft findings of  the International Law Commission 
(ILC) reflect the fundamental principles of  customary 
international law.

Recognition of  State Practice
State practice recognition to determine how the 
International Law Commission’s (ILC) Draft conclusions 
affect customary international law. This method examines 
if  the research results match states’ contemporary 
international law actions and behaviours. The findings 
reflect countries’ global behaviour, according to 
analysis. Government diplomatic, legislative, executive, 
and international agreements and forum activity are 
examined.  Opinion juris and state practises make up 

customary international law (CIL). This course examines 
international organisation resolutions condemning 
unilateral sanctions and both sides’ sanctioning practices. 
This article examines how sender nations justify 
punishments using CIL standards (Rowhani, 2022). It 
relates to erga omnes-compliant measures, embargoes, 
and targeted sanctions. It assessed CIL’s rights-based 
limits for Russia and China embargoes and Magnitsky 
Act penalties.

Impact on State Behavior
One of  the impacts on state behaviour has found 
that the US government’s move from war on terror 
to power competition with China and Russia has been 
discussed(Wan, 2022). There has been no comparable 
consideration of  IHL and LOW in the US or China. The 
US and West benefit from Western legal traditions like 
IHL and HRL. China had to adjust and now challenges 
the West-dominated international system, a key source of  
US-China friction. Chinese and American forces used the 
Geneva Conventions throughout the Korean War. The 
conflict happened 70 years ago, and much has changed. 
It is the sole precedence between the two superpowers. 
LOW organises high-power conflict. A contest between 
the two biggest nations would restrict IHL to national 
concerns and impair its human rights association.

Evolution of  Customary Law
John Austin argues that customary laws are positive 
morality derived from regulated agreements. The state 
must construct customary laws to turn moral standards 
into actual laws. State customary laws were established 
by legislation or judicial judgment. According to Austin, 
customary behaviour does not become law until it 
is enacted by legislation or judicial judgment. Local 
customary law is sometimes viewed as custom rather than 
judicial precedent, even if  it is based on local judgements 
rather than local behaviour. This approach questions how 
judgements create customary law. Custom is different 
from legislation, and judicial precedent, like judicial 
precedent, must be adopted by the sovereign to become 
law. Customs, like legislation and binding precedent, must 
be given the necessary shape by the sovereign to become 
law. Customs must be used in court decisions under this 
type. A community may recognise custom as law when 
integrated into a court ruling yet deny precedent law-
making force, showing that custom is not simply absorbed 
into precedent. If  the courts uphold the tradition, it is 
customary law. The new decision becomes customary law 
if  the courts rule that the custom has changed (Jalloh, 
2020).
In analysing the Connection between Customary Land 
Rights and Land Grabbing: A Case Study of  Zambia,” 
the study examines the complex causes of  land grabbing 
in Zambia. Since the 2000s, global problems have 
caused international and domestic companies to buy 
large amounts of  property for different objectives, 
displacing indigenous African populations on customary 



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land (Bae, 2023). Weak customary land rights enable 
land grabs, although the study emphasises that they are 
not the primary cause. A ‘land-grabbing-friendly legal 
climate’ is the study’s focus. The study uses legal history 
to critically investigate Zambia’s land-grabbing regions 
and the varied land-grabbers engaged. It also examines 
traditional land use and tenure patterns from colonial 
times to the present. Both domestic and foreign land-
grabbers are linked to government-driven agricultural 
programs, according to the major findings. The dual-
tenure system, created under colonial control and still 
in use today, has made ordinary Zambians living on 
customary land economically vulnerable, eroding their 
customary land rights. Given these findings, the study 
strongly recommends that the Zambian government set 
appropriate land-titling registration costs for ordinary 
residents living on customary property. It also supports 
separating development from land legislation to 
strengthen Zambians’ land rights and combat land grabs.

Alternative Approaches to Shaping Customary 
International Law
The evolving standards pertaining to humanitarian 
intervention and the duty to safeguard people against 
widespread crimes have the potential to influence 
customary international law, especially as states and 
international organisations continue to confront challenges 
regarding sovereignty and humanitarian intervention 
(Simpson, 2021). The most severe international reaction 
is humanitarian intervention or military invasion to 
defend at-risk populations. This intervention has a 
contentious history in developing nations of  the Global 
South, claiming that the UN Charter and international 
law do not allow former imperial or colonial powers to 
violate their sovereignty and reimpose colonial slavery. 
Over the past two decades, global diplomacy has sought 
a more open and collaborative response to enormous 
human suffering under the banner of  “the Responsibility 
to Protect”(Weiss, 2016).
At the core of  customary international law lies the concept 
of  state practice, which refers to the tangible actions 
undertaken by states. States contribute to the creation 
of  customary standards by consistently participating in 
state practice and expressing the view that such practice 
is legally necessary(Negishi, 2017).
The Federal Republic of  Germany, et al., Petitioners, 
v. Alan Philipp et al., No. 19-351, was heard by the US 
Supreme Court. The case, contested on December 7, 
2020, and determined on February 3, 2021, concerns 
the Welfenschatz, a collection of  mediaeval antiquities 
acquired by German Jewish art merchants during the 
Weimar Republic. The heirs of  these merchants claim that 
the Nazis forced them to sell these antiquities to Prussia 
at a discount. The Stiftung Preussischer Kulturbesitz, a 
German government entity, houses the objects in a Berlin 
museum. After failing to get a remedy in Germany, the 
heirs filed common law property claims against Germany 
in the US District Court. The main question was whether 

Germany was liable under the Foreign Sovereign 
Immunities Act for confiscating property in violation of  
international law (28 U.S.C. § 1605(a)(3)). The heirs claimed 
genocide, while Germany claimed appropriation under 
international law. The District Court denied Germany’s 
motion to dismiss, and the D.C. Circuit affirmed it. 
Under Chief  Justice Roberts, the Supreme Court ruled 
that “rights in property taken in violation of  international 
law” pertain to appropriation and the domestic takings 
rule (Grabarsky, 2021). Based on the distinction between 
international ties and domestic concerns, this notion has 
historically been used to distinguish between foreign and 
domestic property expropriation. The court emphasised 
the Foreign Sovereign Immunities Act’s goal of  
formalising the restricted sovereign immunity approach. 
This view restricts protection to sovereign activities 
in their official capacity. Expanding the expropriation 
exception beyond its intended confines will obscure this 
vital distinction, subjecting other sovereign governmental 
acts to court review. The court did not examine Germany 
and the heirs’ arguments on international comity and 
consortium members’ nationality during the transaction; 
the court vacated and remanded the case (894 F.3d. 406).
Respondent Gilbert P. Hyatt sued petitioner Franchise 
Tax Board of  California (Board) in Nevada state court 
for torts committed during a tax audit . The Nevada 
Supreme Court rejected the Board’s claim that the Full 
Faith and Credit Clause required California law and 
immunity. Instead, it ruled that comity gave the Board 
only Nevada agency immunity under Nevada law. The 
Full Faith and Credit Clause did not require Nevada to 
adopt California’s immunity provision, the Supreme 
Court ruled. On remand, the Nevada Supreme Court 
did not limit tort liability for state entities. The U.S. 
Supreme Court overturned this ruling, stating that the 
Full Faith and Credit Clause obliged Nevada courts to 
offer the Board the same immunity as Nevada agencies. 
The court evenly split on whether to overrule Nevada 
v. Hall, a precedent holding that the constitution does 
not bar individual suits against a State in the courts of  
another State, but ultimately ordered the trial court to 
enter damages according to Nevada’s statutory cap. The 
Board’s third certiorari request asked whether Nevada 
v. Hall should be reversed. Justice Thomas argued that 
Nevada v. Hall should be overturned because states have 
sovereign immunity from private litigation in other states’ 
courts (Hickman & Hahn, 2020).  The study employs a 
methodical and evidence-based methodology to assess the 
influence of  the International Law Commission (ILC) on 
the advancement of  Customary International Law (CIL). 
This research aims to analyse the trends and patterns that 
have emerged after the publication of  the 2018 Draft 
Conclusions. Its objective is to provide empirical insights 
into the International Law Commission’s (ILC) impact 
on the establishment of  customary international law 
(CIL). The objective of  this study is to use thorough data 
collecting and analysis in order to reveal any potential 
changes in the customary practises and standards 



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acknowledged by states. Through an analysis of  the actual 
implementations and reception of  (ILC) proposals, this 
research aims to enhance our comprehension of  the 
dynamic nature of  customary international law (CIL) 
and its connection to the ILC’s efforts. This study aims 
to provide insight into the tangible effects of  the ILC 
Draft Conclusions on the development and progression 
of  Customary International Law in current international 
legal practice, using empirical data. International courts 
and tribunals, such as the (ICJ), have determination of  
customary international law (CIL). In this particular 
region, particularly in the last several decades, there 
has been a notable shift in the approach adopted 
within the realm of  international jurisprudence. This 
transformation is attributed to the evolving concepts 
of  humanity and humanitarian law. In contrast to the 
conventional method that primarily depends on state 
practice, this recently developed methodology, which has 
also garnered endorsement from the Special Rapporteur 
of  the International Law Commission (ILC) in its fifth 
report in 2018, prioritises the identification of  opinio 
juris (Zarneshan & Rastgoo Afkham, 2020). 
In one of  the cases related to Cambodia v. Thailand 
(ICJ) was summoned to adjudicate a territorial conflict 
between Cambodia and Thailand over the Preah Vihear 
Temple, an esteemed UNESCO World Heritage site 
situated along the shared boundary of  the two nations 
(Gosrisirikul & Srisorn, 2019). Cambodia initiated legal 
proceedings before the (ICJ) with the objective of  
obtaining an interpretation and implementation of  a 
1962 judgement that had previously granted ownership 
of  the temple and its surrounding area to Cambodia. 
Thailand contended that the judgement rendered in 1962 
failed to adequately establish the precise boundary in the 
vicinity of  the temple. The (ICJ) extracted a decision in 
2013 affirming that the judgement made in 1962 had 
effectively established the ownership of  the temple and 
its surrounding territory. The court underscored the need 
to uphold and execute its prior ruling. The case beyond 
the settlement of  a particular territorial dispute serves to 
underscore the pivotal role played by international law 
and the (ICJ) in the resolution of  disputes within the 
Asia-Pacific region. 
During the 1960s, the Chagos Archipelago, situated in 
the Indian Ocean, suffered a separation process from 
Mauritius. During the period of  administration, the 
United Kingdom separated the Chagos Archipelago 
from Mauritius. It formed the British Indian Ocean 
Territory (BIOT), including the strategically shown 
naval installation known as Diego Garcia (Gaver, 2021). 
Mauritius contended that the act of  separation constituted 
a violation of  international law, namely the principle of  
territorial integrity. In the year 2017, the United Nations 
General Assembly made a formal request to the (ICJ) 
for an advisory opinion about the legal ramifications 
associated with the act of  separation (Rrecaj, 2020). 
The focus of  the case was stated on issues pertaining to 
decolonisation and the exercise of  self-determination. 

Mauritius argued that the separation of  the Chagos 
Archipelago constituted a breach of  the Chagossians’ 
right to self-determination as the indigenous population. 
The role of  international organisations, the United 
Nations, in supervising and exerting influence over the 
decolonisation process was brought into question by 
this particular instance. The analysis focused on the 
association of  the United Kingdom’s activities with 
international law and the ideals advocated by international 
organisations. The decolonisation process of  Mauritius 
was determined to have deviated from the principles of  
self-determination. The court reached the determination 
that the separation of  the Chagos Archipelago violated 
the law, and it was incumbent upon the United Kingdom 
to terminate its governance of  the Archipelago. This 
case has observed international organisations, namely 
the United Nations, in supervising and exerting influence 
over the decolonisation process (Bashfield, 2021). 

CONCLUSION
The 2018 Draft Conclusions published by the International 
Law Commission (ILC) constitute a achievement in 
the advancement of  customary international law, with 
a particular emphasis on the peremptory norms often 
referred to as jus cogens. These findings emphasise the 
significance of  using a systematic methodology in the 
identification and understanding of  the fundamental 
concepts of  general international law. The International 
Law Commission (ILC) shown it’s in promoting global 
legal consistency and effectiveness by a rigorous and 
open process in developing these Draft findings. This 
approach included thorough study, empirical analysis, 
and case studies were included. In addition, alternative 
methodologies, such as the dynamic principles 
governing humanitarian intervention and the concept 
of  Responsibility to Protect (R2P), serve as examples of  
how present-day complexities may influence established 
norms of  international law. The 2018 ILC Draft 
Conclusions have significant value for both academic and 
practical purposes within the realm of  international law. 
They provide a well-defined and inclusive structure for 
understanding and implementing jus cogens principles.

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