Elements of Customary Law in the light of the 2014 Report of the Special Rapporteur of the International Law Commission

Customary rules have the special position in international law due to characterstic such as wide dynamic and adaptability with update developments of ratione materiae of practice. The process of identification and determination of customary rules is basically vague and uncleare and there is no exact formula and criteria. The problem of determining customary international law has long been of interest to scholars of international law, Experts and several international law institutions have addressed this topic but different and contrary views on this issue is presented. The basic question have arised in this article is that among the various theories to explain the formation and determination of customary rules, which theory to explain the Commission’s Rapporteur and customary rules have been met and what criteria are used in determining these rules? The Special Rapporteur approach has been relying on case law: Custom is twocomponent system consisting of a material element (practice) and subjective element (opinio juris) that both elements to create a rule of customary international law are inseparable. As the general theory of special Rapporteur eventually approved by the commission itself and will be referred by the International Court of Justice, therefore, it can be helpful the analysis of Special Rapporteur`s approach for researchers in determining the customary rules of international law.