CYIL vol. 9 (2018)

CYIL 9 ȍ2018Ȏ INTERNATIONAL LAW ON THE USE OF FORCE… decisive body vested with the primary responsibility for international peace and security, adopts a resolution, then such resolution is prima facie a sole act of the Security Council as an organ of the United Nations. However, the votes and statements of the States, members of the Security Council, may be understood also as expression of the Member States’ own legal position and thus as State practice, not a practice of the organization as such. The problem of distinguishing between acts of member states and the acts of the organization 26 is inherently connected to the very nature of international organizations as international legal entities created (mostly) by States. The ILC’s draft of conclusions concerning formation of customary international law provides that in certain cases, the practice of international organizations also contributes to the formation, or expression, of rules of customary international law (Conclusion 4, para. 2). 27 The issue seems to be clear since the Commentary states that this relates only to “practice attributed to international organizations themselves, not that of their member States acting within them”. 28 Moreover, given that international organizations are bound by customary international law, it seems logical to argue that they can also contribute to its creation. The issue is however far from being clear not only in the specific context of international rules governing use of force, but it is controversial in general, as the disagreement reflected in States’ comments to respective ILC draft conclusions attests. 29 Wood, the ILC’s special rapporteur on identification of customary international law, identified himself what he denoted as “number of difficult questions” to be addressed. 30 First is the need to equate practice of international organizations and their member States in cases, when in a specific area an exclusive competence has been transferred to the organization. Whereas this idea may seem to work easily if thinking e.g. of the EU and its member States, for the area of the use of force this may seem more doubtful when looking at the UN Security Council. The UN member States transferred to the UN Security Council the primary responsibility for peace and security and agreed that in carrying out this responsibility it will act on their behalf (Article 24 UN Charter). The question here is simple, namely whether this constitutes 26 On this question cf. ILC’s commentary to draft conclusion 4, but also draft conclusions 6, 10 and 12 (which refer, among others, to the practice and acceptance as law of States within international organizations), ILC Report, A/71/10, 2016, chap. V, paras. 50-63. 27 This statement is supported by existing ICJ jurisprudence. In Military and Paramilitary Activities in and against Nicaragua (p. 97) the ICJ noted that in order “to consider what are the rules of customary international law applicable to the present dispute […] it has to direct its attention to the practice and opinio juris of States“. According to the ILC’s Commentary, “the word “primarily” indicates that it is not exclusively State practice that is relevant.” 28 Ibid. 29 The position of the US might be taken as an example of disagreement with the ILC: Draft conclusion 4 deviates from [the] established understanding of the practice requirement by asserting that the practice of international organizations – as distinct from the practice of member States that constitute those international organizations – may, in some cases, similarly contribute to the formation of customary international law. There is no similar support for this proposition either in the practice and opinio juris of States or in other authoritative sources, and the commentary to draft conclusion 4 cites none (A/CN.4/716, p. 19). From doctrinal voices in favor cf. ODERMATT, J.: The Development of Customary International Law by International Organizations. International and Comparative Law Quarterly . 2017, vol. 66, issue 2, pp. 491-511. 30 Cf. WOOD, M.: International Organizations and Customary International Law. 2014 Jonathan J. Charney Distinguished Lecture in Public International Law. Vanderbilt Journal of Transnational Law. 2015, vol. 48, no. 3, p. 617.

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