پژوهش های حقوق تطبیقی (Dec 2023)
The International Organizations\' Activism in Development of Customary International Law
Abstract
International organizations contribute- as one of the main subjects of international law- to the development of customary international law. This contribution is one of the new topics in contemporary international law. Recently, Internatoonal Law Commission has put this issue on its agenda and drafted conclusions on identification of customary international law. As stipulated in Article 15 of ILC Statute," development" refers to the formation of custom, not its codification. Thus, in this research, by using the term "development", the author intends to address the role of international organizations as law makers. The principal problem of this research is the ambiguities in the approach adobted by the Internation Law Commission on the role of international organization in development of customary international law. In this regard, Article 4(2) of the draft conclusion has provided that: " In certain cases the pratice of international organizations contributed to the formation of the rules of customary internatial law." This can occur where members states have not transferred exclusive competences, burt have conferred competences upon the international organization that are functionally equivalent to the powers exercised by states. Although the commission has not rejected the role of organozations in the development of customary law , it is not clear to what extent the practice of non- state actors is relevent for the identification of customary international law. Hence, in this paper, by using the descrpitive- analytical method, the ways international organizations contribute to the development of international custom has been the main subject of discussion.
