The Making of Lawmaking: The ILC Draft Conclusions on the Identification of Customary Law

This chapter examines the ILC Draft Conclusions on the Identification of Customary Law. The Draft Conclusions seek to discipline the way in which international law is found. This makes the Draft Conclusions, quite literally, ‘foundational’, and thus also more openly political than most of the other projects of the ILC. The Draft Conclusions are not just registrations of past practices. They construct certain practices as relevant and exemplary, while they ignore or delegitimize others. They instruct the reader where to look and how to look for role models, thus making the past ‘present again’ as a guide for the future.