Abstract
Abstract
The International Law Commission’s (ILC) Draft Conclusions on Identification of Customary International Law represent an important attempt to provide organized doctrinal guidance on customary law-making. However, a conceptual issue figures prominently: the formation and development of custom are characterized in the Conclusions as distinct from the identification of custom, and the ILC offers little explanation as to why this must be the case. In essence, this distinction assumes that the formation of custom is an objective, spontaneous, and chronological process beyond the control of individual lawyers. Although seemingly innocuous, this assumption is directly responsible for various doctrinal problems, such as the relationship between the two traditional elements of custom, the requisite duration of its formation, and the ‘post-identification’ interpretation of custom. Drawing primarily on insights from historiography, this article explains why the formation and identification of custom should be understood as a single process, and why conceiving of it as a matter of narrative construction provides a better solution to the above-mentioned questions.