Michael Wood, the International Law Commission, and Custom

Sir Michael Wood was at the ANU Centre for International and Public Law today talking about his experience working with the International Law Commission after two years.  It was a great talk, even though I had to depart early.  It was also great to see so many students in the audience.

Last year, Sir Michael and I crossed swords in the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea (ITLOS) in Case No. 17.  As co-counsel for the International Union for the Conservation of Nature (IUCN), I invited the Chamber to consider the concept (developed by the ILC) of  state “residual liability” for harm caused by a sponsored contractor that is either blameless or insolvent.  Sir Michael argued that the invitation was premature and, as expected, the Chamber agreed with Sir Michael on this point (although the rest of the recent Advisory Opinion in Case No. 17 confirms and adopts much else we (Cymie Payne, Robert Makgill and I) argued).  One of the best parts of the ITLOS experience was having cocktails with Sir Michael.  I will always remember his comment that he thought the IUCN should have residual liability.

The best part of today, though, was hearing about the ILC from, as you would expect, a relatively positivist point of view and there was much by way of critique.  I was particularly interested to learn the Sir Michael wants to place the topic of the Formulation of Customary International Law on the Commission’s agenda.  Given the recent back and forth between on the Bradley & Gulati idea of withdrawal from custom and divergent views on the nature of custom and its requirements, the topic seems like a subject ripe for work  — although all this disagreement may also be seen as militating against inclusion at this time because of the uncertainty it highlights.  To me, on balance, it would be a boon to have a concise instrument on the elements and criteria that goes into the formation of custom from the ILC.  Regardless, I was told by a friend who was able to stay until the end that Sir Michael said that the U.S. and U.K. were opposed to the ILC taking it up.  While not an absolute bar, it does makes things more difficult.  I suppose we all have to stay tuned.

UPDATE: I’ve been reliably informed that that my friend was in error and that according the Sir Michael, the U.K. has offered no resistance to the idea.

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