Forms of Contribution to Customary International Law. At the outset, a conceptual distinction needs to be drawn between the potential for Assembly resolutions to declare existing law (lex lata), crystallise emerging custom (in statu nascendi), or to be a focal point for the future development of a customary norm (de lege ferenda). In relation to the lex lata, it is clear that the binding force comes not from the resolution but from the customary law as reflected in the resolution.516 Some might say that the Assembly resolution that declares customary international law contributes nothing, it being a mere exhortation to comply with an existing obligation. However, particularly when looking at the use of Assembly resolutions in the jurisprudence in Chapter 2, this view is misconceived.517 The view assumes that custom was perfectly formed and expressed prior to its articulation in a Assembly resolution. The reality is that custom, being derived from diffuse practice, will often be lacking the precision that comes from a text.518 As Xxxxxx Xxxxx noted, the function of a Assembly resolution is that it will define, formulate, clarify, specify, authenticate and corroborate the rule contained within it.519 This is a particularly important function where an individual is sought for trial for international crimes that derived from customary international law. In the absence of a precise text setting out the offence, a conviction might not comply with nullum crimen sine lege because the putative crime was neither accessible or foreseeable to the 511 ibid. 512 Belgium v Senegal (Merits) (n 303), [99]. 513 UNGA Sixth Committee, Seventy-first session, 20th meeting (11 November 2016) UN Doc A/C.6/71/SR.20, [52] (Finland); UNGA Sixth Committee, 21st meeting (n 435), [141] (Sudan); UNGA Sixth Committee, Seventy-first session, 23rd meeting (26 October 2016) UN Doc A/C.6/71/SR.23, [30] (Algeria), [41] (Egypt). 514 ILC, ‘Draft conclusions on CIL’ (n 24). 515 The Commentaries also acknowledge that ILC output ‘merits special consideration’ in the present context: ibid, 142. 516 See also UN Office of Legal Affairs, ‘Memorandum on Use of the Terms “Declaration and Recommendation”’ (2 April 1962) UN Doc E/CN.4/L.610. 517 ibid 68. 518 ibid 69. 519 ibid. accused at the time of its commission.520 It is therefore unsurprising that reliance has been placed on Assembly resolutions to offer precision that was not available when the putative customary rule at issue was unwritten and diffuse. The many examples from the ECCC covered in Chapter...
