Lekkas, S.-I. orcid.org/0000-0003-1744-9958 (2022) The uses of the outputs of the International Law Commission in international adjudication: subsidiary means or artefacts of rules? Netherlands International Law Review, 69. pp. 327-359. ISSN 0165-070X
Abstract
This paper examines the methods which international courts and tribunals (ICTs) employ when using ILC outputs for the purpose of determining rules of international law and their content. Specifically, it identifies common patterns in the ways in which ICTs, first, justify their reliance on ILC outputs and, second, deal with their ambiguities. The paper argues in favour of a consistent methodology for the treatment of ILC outputs in international adjudication. Such a framework is based on the distinction between the identification of the status of a normative proposition contained in these texts and the determination of its content or its interpretation. The identification of the status of a normative proposition requires a critical assessment and reconstruction of the evidence leading up to its development taking also into account that these instruments are not a monolith from the perspective of sources. However, the interpretation of a proposition whose status is uncontested follows a line of inquiry akin to treaty interpretation. This observation has broader implications for the process of interpretation in international law. Specifically, apart from the context of treaty interpretation, international courts or tribunals interpret the normative propositions contained in ILC outputs as a methodological shortcut for the interpretation of rules of customary international law or general principles of law. Conversely, the employment of methods akin to treaty interpretation in this context can constitute evidence of the emergence of common rules, principles, or good practices of interpretation that are also applicable to unwritten international law.
Metadata
Item Type: | Article |
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Authors/Creators: |
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Copyright, Publisher and Additional Information: | © The Author(s) 2022. This article is licensed under a Creative Commons Attribution 4.0 International License, which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons licence, and indicate if changes were made. The images or other third party material in this article are included in the article's Creative Commons licence, unless indicated otherwise in a credit line to the material. If material is not included in the article's Creative Commons licence and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder. To view a copy of this licence, visit http://creativecommons.org/licenses/by/4.0/. |
Keywords: | International Law Commission; International courts and tribunals; Treaty interpretation; Customary international law; General principles of law |
Dates: |
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Institution: | The University of Sheffield |
Academic Units: | The University of Sheffield > Faculty of Social Sciences (Sheffield) > School of Law (Sheffield) |
Depositing User: | Symplectic Sheffield |
Date Deposited: | 14 Feb 2024 17:11 |
Last Modified: | 14 Feb 2024 17:11 |
Published Version: | http://dx.doi.org/10.1007/s40802-022-00221-1 |
Status: | Published |
Publisher: | Springer Science and Business Media LLC |
Refereed: | Yes |
Identification Number: | 10.1007/s40802-022-00221-1 |
Related URLs: | |
Open Archives Initiative ID (OAI ID): | oai:eprints.whiterose.ac.uk:209112 |