Charles C. Jalloh (Florida International University College of Law) has posted Subsidiary Means for the Determination of Rules of International Law (Annex to the Report of the International Law Commission on the work of its Seventy-Second Session (2021)) on SSRN. here is the abstract:
The International Law Commission (ILC), an independent expert body of the United Nations General Assembly, is entrusted with assisting States with the promotion of the progressive development of international law and its codification. As part of this, under the Statute of the ILC adopted in 1947, the ILC identifies topics on critical issues of international law that may warrant further study. Members of the ILC submit proposals for consideration within the context of the ILC’s Working Group on Long-term Program of Work. The requirements are that the topic should: (a) reflect the needs of States in respect of the progressive development of international law and its codification; (b) be sufficiently advanced in stage in terms of State practice to permit progressive development and codification; and (c) be concrete and feasible for progressive development and codification. This topic proposal, prepared by Prof. Charles C. Jalloh, in his capacity as a member of the ILC, was approved by the ILC in 2021. This means that there was consensus that the topic fulfills the criteria for addition to the long-term program of work. The paper proposes a study related to sources of international law, specifically, article 38(1)(d) of the Statute of the International Court of Justice which provides for judicial decisions and the teachings of the most highly qualified publicists of the various nations as subsidiary means for the determination of rules of international law. The topic is notified to States as an annex to the Report of the International Law Commission on the work of its Seventy-Second Session (2021).