CYIL vol. 15 (2024)

PAVEL ŠTURMA 2.5 Subsidiary means for the determination of rules of international law Regarding this topic, the Commission had before it the second report of Special Rapporteur Charles Ch. Jalloh, which deals mainly with functions of subsidiary means for the determination of rules of international law. 22 Based on the analysis of the drafting history, practice of the International Court of Justice and other international tribunals and views of scholars, he came to the conclusion that subsidiary means under Article 38(1)(d) of the Statute of the ICJ are not sources of international law and that they have auxiliary nature. Subsidiary means are mainly resorted to when identifying, interpreting, and applying the rules of international law derived from the sources of international law. 23 In the next chapter, the report addresses the general nature of precedent in domestic and international adjudication. It leads to two additional draft conclusions concerning the absence of a rule of precedent in international law and the persuasive value of the decisions of courts and tribunals. Following the debate and redrafting in the Drafting Committee, the Commission then provisionally adopted draft conclusion 6, 24 draft conclusion 7, 25 and draft conclusion 8. 26 As to the future programme of work, in his 2025 report, the Special Rapporteur will analyse teachings and other subsidiary means. 2.6 Non-legally binding international agreements This is a new topic placed on the programme of the ILC in 2023. During this session, the Commission had before it the first report of the Special Rapporteur Mathias Forteau. 27 The report was preliminary in nature and intended to enable an initial discussion with a view to defining the general direction of the Commission’s work on the topic, its scope, questions to be examined, and the form of the final outcome of the work on the topic. This is also the reason why no draft provisions were proposed at that stage. The Special Rapporteur pointed out that the topic should clarify the nature, regime, and potential legal effects of non-legally binding international agreements, in view of existing practice, jurisprudence, and doctrine. He observed that a growing body of practice on the subject of non-legally binding international agreements existed, which was giving rise to increasingly pressing legal questions of a practical nature. The first report also recalls the 22 See UN doc. A/CN.4/769 (2024). 23 This is reflected in draft conclusion 6 (Nature and function of subsidiary means). See A/CN.4/769, p. 38, para. 126. 24 See doc. A/CN.4/L.999 (2024): ‘1. Subsidiary means are not a source of international law. The function of subsidiary means is to assist with the determination of the existence and content of rules of international law. 2. The use of materials as subsidiary means for the determination of rules of international law is without prejudice to their use for other purposes.’ 25 Ibid .: ‘Decisions of international courts or tribunals may be followed on points of law where those decisions address the same or similar issues as those under consideration. Such decisions do not constitute legally binding precedent unless otherwise provided for in a specific instrument or rule of international law.’ 26 Ibid .: ‘When assessing the weight of decisions of courts or tribunals, regard should be had to, in addition to the criteria set out in draft conclusion 3, inter alia : (a) whether the court or tribunal has been conferred with a specific competence with regard to the application of the rule in question; (b) the extent to which the decision is part of a body of concurring decisions; and (c) the extent to which the reasoning remains relevant, taking into account subsequent developments.’ 27 See UN doc. A/CN.4/772 (2024).

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