Modern Considerations in the Identification of Customary International Law: Reflections on the ILC’ Reports (2013-2018) & Some International Judicial Decisions

Document Type : Original Article




International judicial tribunals including the International Court of Justice (ICJ) have always been deemed as valuable treasures in identifying the rules of customary international law (CIL). In this area, specifically in recent decades, the approach that is employed as international jurisprudence is modified due to the evolutions in the concept of the principles of humanity and humanitarian law. Such a newly-emerged approach _which is also supported by the International Law Commission (ILC) in its fifth report in 2018_ unlike its traditional precedent to be relied initially on the practice of states, rests on the identification of opinio juris in the first place.   What we have discussed in the present article is the necessity of the introduction of a new approach for the identification of customary rules in international law. For this purpose, we attempted to collect and analyze the concurring opinions and arguments that exist in judicial jurisprudence of various international tribunals such as the ICJ, as well as those of the International Law Commission as ubiquitous evidence to establish a change in the process of the identification of custom.