¿Un caso de “volver al futuro”? Las Conclusiones sobre la Identificación del Derecho Internacional Consuetudinario de la Comisión de Derecho Internacional de la ONU

This article claims that the 2018 Conclusions on Identification of Customary International Law produced by the International Law Commission constitute a conceptual regression of customary international law to the theoretical approach originated in the 1920 Statute of the Permanent Court of International Justice, bringing back to the present the theoretical and practical inconsistencies of the past. Although the Commission has the fundamental purpose of codifying and developing international law, this particular work becomes the most anachronistic expression of the theory of customary international law. It goes back to the source’s orthodox perspective, which by 2020 turns a century of existence. This research proves that the Conclusions, far from being a new approach, constitute a theoretical regression, which, thanks to the efforts of the Commission, seem to be in force again. In this vein, it is here sustained that there is no univocal theory on the identification of customary international law despite the Commission’s pains. On the contrary, there are a series of theoretical perspectives proposing different possible approaches to the source, so that none of them can be considered dogma. With this purpose, the paper initially contextualizes and analyses the consolidation process of the orthodox perspective to customary international law, to later describe a set of alternative theoretical perspectives. Lastly, it presents some structural and specific critiques to the Commission’s Conclusions led by the special rapporteur, Sir. Michael Wood.