CYIL vol. 14 (2023)

PAVEL ŠTURMA

CYIL 14 (2023)

2.4 Subsidiary means for the determination of rules of international law During its seventy-second session (2021), the International Law Commission decided to include the topic “Subsidiary means for the determination of rules of international law” in its long-term programme of work. 18 In 2022, the Commission decided to place this topic on its current programme of work and appointed Mr. Charles Chernor Jalloh as Special Rapporteur for the topic. During the present session (2023), the Commission had before it the First report of the Special Rapporteur, 19 as well as the Memorandum by the Secretariat. 20 Both documents are very long and rich, providing thus an introductory basis for the work of the Commission on the new topic. The introductory yet very detailed report of the Special Rapporteur not only recalls the introduction of the topic in the programme of the ILC and the debate on the topic in the Sixth Committee of the General Assembly in 2021 and 2022 (chapter II), but also explains the scope and outcome and methodology of the topic (chapters III and IV). Chapter V that heavily relied on the Memorandum by the Secretariat presents the previous work of the Commission on subsidiary means. Of a more general and theoretical character is the discussion on the nature and function of sources in the international legal system in Chapter VI. In chapters VII and VIII respectively the report addresses the drafting history and textual analysis of Article 38(1)(d) of the Statute of the International Court of Justice. The most interesting but also controversial seems to be chapter IX that proposes additional subsidiary means for the determination of rules of international law. Based on the non-exhaustive nature of Article 38, the Special Rapporteur presented some arguments and outlines potential candidates for subsidiary means. While unilateral acts of States that are legally binging under certain circumstances should not be considered “subsidiary means”, resolutions of international organizations, such as General Assembly resolutions, have been proposed for consideration. 21 Finally, in chapter X, the report presents five draft conclusions. Following the debate and reformulation in the Drafting Committee, three draft conclusions have been provisionally adopted by the Committee and, eventually, by the Commission. Draft conclusion 1 concerns the scope of the topic. Draft conclusion 2 outlines categories of subsidiary means that include (a) decisions of courts and tribunals; (b) teachings; and (c) any other means generally used to assist in determining rules of international law. Finally, draft conclusion 3 includes a non exhaustive list of general criteria for the assessment of subsidiary means for the determination of rules of international law. 22 The commentary points out that the draft conclusions first aim to identify and elucidate the roles of subsidiary means for the determination of rules of international law, consistent with the letter and spirit of Article 38(1) of the Statute of the 18 Official Records of the General Assembly, Seventy-sixth Session, Supplement No. 10 (A/76/10), para. 302 and annex. 19 First report on subsidiary means for the determination of rules of international law, UN doc. A/CN.4/760. 20 Subsidiary means for the determination of rules of international law: Elements in the previous work of the International Law Commission that could be particularly relevant to the topic. Memorandum by the Secretariat, UN doc. A/CN.4/759. 21 See UN doc. A/CN.4/760, pp. 122–123. 22 Conclusion 3: “When assessing the weight of subsidiary means for the determination of rules of international law, regard should be had to, inter alia : (a) their degree of representativeness; (b) the quality of the reasoning; (c) the expertise of those involved; (d) the level of agreement among those involved; (e) the reception by States and other entities; (f) where applicable, the mandate conferred on the body”.

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