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INTERNATIONAL LAW COMMISSION.

Examine U.N. body's mission, origins, membership, functions, standards & accomplishments.

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INTERNATIONAL LAW COMMISSION
This research paper discusses the International Law Commission (ILC or Commission) of the General Assembly (GA) of the United Nations (UN). This overview will focus on its mission, historical origins, composition and membership, functions, standards and accomplishments. During its first decade and a half, ILC made significant contributions to the codification of existing international law and to its progressive development. Since roughly the early 1960s, it has continued its important codification work, but has contributed little of significance to the development of international law in areas of concern to the international community. This relative decline in the effectiveness of ILC is due to changes in the makeup and political agenda of GA and its Sixth Committee which provides

[27] Thomas M. (no. 42/156, 42 UN GAOR Supp. [18] Sinclair, 112. [2 ] Vienna Convention on Diplomatic Relations, April 18, 1961, 23 UST3227, TIAS No. . New York: United Nations Institute for Training and Research, 1981.Franck, Thomas M., and Mohamed El Baradei. . Pelletsaid in 1997: "an in-depth reform of the Commission's methods of operationsis necessary."[4 ] It is difficult to disagree with the assessment of twoinsiders, Pellet and Sinclair, who says the record of the Commission in the197 s and 198 s through 1987 was "a mixed one."[41] No material changesappear to have taken place since 1987. of International and Comparative Law 2 (Summer 1996): 671-683.Model Rules of Arbitral Procedure Report of the International Law Commission on Its Tenth Session. Ramcharan charged in 1977that ILC was too passive and too conservative and that "there is evidenceto suggest . A/CN.4/SER A/195 /Add. Bloom, "Comments on the International Criminal Court,"ILSA J. The Sixth Committee, which is selected by GAto supervise the work of ILC has input into the agenda making process. Franck, and Robert Trachtenberg, TheInternational Law Commission: The Need for a New Direction (New York:United Nations Institute for Training and Research, 1981), 7-8. During its firstdecade and a half, ILC made significant contributions to the codificationof existing international law and to its progressive development. A conference is[then] convened which will, on the basis of the draft, produce aConvention, which will eventually be opened for signature."[16] In the end,although the Commission approaches its tasks in a professional, nonpartisanmanner, Ramcharan said that the inescapable truth is "there is a deeppolitical significance in the work of the ILC . [8] Ibid. . [11] Sinclair, 9. 75 2, 5 UNTS 95; Vienna Convention on the Law of Treaties,opened for signature May 23, 1969, 1155 UNTS 331; Convention on theContinental Shelf, Apr. 2 at 278, 287.El Bardei, Mohamed, Thomas M. 75 2, 5 UNTS 95.Vienna Convention on the Law of Treaties. . [14] Wallace, 195; and United Nations, Analytical Guide to the Work ofthe International Law Commission, 3 4-3 5. Criticisms Relating to Narrowness of Focus. 49) at 296, UN Doc. Since 1949, the UN said "theCommission has published final reports on 24 topics and has produced over2 sets of draft articles containing basic rules on a host of areasfundamental to international law."[12] In order to produce these outputs, a number of steps are required.Critical is the selection of topics to be acted upon. "The Codification and Progressive Development of International Law: A Unitar Study of the Role and Use of the International Law Commission." American J. Int'l L. He criticized the Commissionfor working too slowly and saw the Rapporteur system as producinginefficient bottlenecks to progress. Comm'm 78, 83, UN Doc. The draft was ready within a year.According to Bloom, in 1993, . [35] Sinclair, 43. [22] Ibid., 9-1 . Comm'm, pt. G. . He suggested that work be assigned toall members as Rapporteurs, the implication being that some like thehonorific but not the work aspects of being a member, and that workingsubcommittees be established to assist the Rapporteurs in between plenarysessions of the Commission in areas such as resource acquisition, researchand planning and co-ordination. [34] Ramcharan, 41. [28] Evan T. Draft reports and draft articles forinclusion in Conventions, when completed, are referred to a DraftingCommittee after they have been debated by the Commission in plenarysession. 5578, 499 UNTS 311,Convention on Fishing and Conservation of the Living Resources of the HighSeas, Apr. the General Assembly asked the ILC to review its draft in light of comments by states. 1, and Model Rules of Arbitral ProcedureReport of the International Law Commission on Its Tenth Session, [1958] 2Y.B. The movementto achieve greater uniformity in international law and to achieve globalconsensus concerning certain minimum standards of state conduct dates backto the 19th century. Apr. Another example of ILC initiative in recent decades was its groundbreaking identification of "massive pollution of the atmosphere or the seasas an international crime" which has since been incorporated in many UNDeclarations, such as the Stockholm (1972) and Rio (1992) Declarations, onthe environment.[3 ] Nevertheless, from the perspective of the 199 s,Graefrath said: "the development of new areas of law, the creation of newstates, progress in science and technology, and the urgent need foreconomic and social development were all factors that call for the dynamicevolution of international law."[31] According to Hafner, "the work of theILC mainly consists in reformulating legal rules which already exist."[32]French ILC member Alain Pellet said in 1997, "there is no new large-scaleproject in its [ILC's] programme of work.[33]" Criticisms Relating to Structure and Methods of Work. 2 at 374,UN Doc. [37] Ibid. "The International Law Commission: Improving the Organization and Methods of Work." American J. 29, 1958, 17 UST 138, TIAS No. Important areas ofinternational law have not been considered by it or have by-passed it."[24]As Ramcharan and later critics pointed out, ILC was frequently by-passed byGA in favor of other UN bodies on which member states were represented suchas UNCITRAL in areas such as new human rights conventions, environmentalconventions, the law of outer space, the law relating to the control ofterrorism and other forms of international violence and internationaleconomic law. of International and Comparative Law 2 (Summer 1996): 649-654.Convention on Fishing and Conservation of the Living Resources of the High Seas. Cambridge: Grotius Publications, 1982.The Principles of International Law Recognized in the Charter of the Nurnberg Tribunal and in the Judgment of the Tribunal. [21] United Nations, International Law on the Eve of the Twenty-FirstCentury View From the International Law Commission, 8. [41] Sinclair, 113. 5969, 559 UNTS 285.Convention on the Continental Shelf. 29, 1958, 15 UST 471, TIAS No. Ramcharan wascritical of ILC's reliance on part-time members, but conceded that apolitical consensus was lacking for making the Commission a full-timeendeavor for its members. 1.. Sinceroughly the early 196 s, it has continued its important codification work,but has contributed little of significance to the development ofinternational law in areas of concern to the international community. M. Comm'm 78, 83, UN Doc. Over time as membership in the GeneralAssembly has expanded, so has membership in ILC, from 15 in 1946 to 21 in1956, 25 in 1961 and 34 since 1981.[7] Wallace says GA elects members fromlists of national groups and attempts to ensure equitable geographicaldistribution.[8] According to Sinclair, five of the original members werefrom nations represented on the UN Security Council, the United States,Great Britain, France, Nationalist China and the Soviet Union, four werefrom Latin America, two were from Asia and one was from Eastern Europe.[9]Since the 196 s, many more members have been elected from less developednations in Latin America, Asia and Africa. The International Law Commission. [38] General Assembly Res. Franck, and Robert Trachtenberg. [4] Sir Ian Sinclair, The International Law Commission (Cambridge:Grotius Publications, 1982), 3. A/CN.4/SER.A/1958/Add. 1a. 29, 1958, 15 UST 16 L, TIAS No. . of the UN Charter provides: "The GeneralAssembly shall initiate studies and make recommendations for the purpose of. 29, 1958, 13 UST 2312, TIAS No. promoting international cooperation in the political field andencourage the progressive development of international law and itscodification." ILC was created by GA Resolution 174 (II) on November 21,1947.[1] Its first members were selected on November 3, 1948 and it heldits first working session on April 12, 1949.[2] Its mission, as describedin Article 15 of the Statute of the International Law Commission was: (1)"the more precise formalization and systematization of rules ofinternational law in fields where there already has been extensive Statepractice, precedent and doctrine;" and (2) "the progressive development ofnew international law," which Article 15 defined as "the preparation ofdraft convention on subjects which have not yet been regulated byinternational law or in regard to which the law has not yet beensufficiently developed in the practice of States."[3] The need for a more coherent formulation of international law wasapparent to the founding members of the United Nations in 1945 in view ofprevious experience, including the widespread flouting of international lawand civilized norms of human conduct witnessed during World War II,including among other things the Holocaust and widespread violations of the1929 Geneva Convention on the treatment of prisoners of war. [195 ] 2 Y.B. A/42/49 (1987). 174 (II), 2 UN GAOR at 296, UN Doc. [it] did so, and in 1994 presented to the United Nations an even more polished draft, together with a recommendation that the . The first Geneva Convention (in 1864) dealt with thetreatment of sick and wounded members of armed forces. Mission and Historical Origins Article 13, para. A/519 (1948).Graefrath, B. April 18, 1961, 23 UST 3227, TIAS No. 52 , 45 UNTS 82, andConvention on the Territorial Sea and Contiguous Zone, Apr. New York: United Nations, 1997.United Nations General Assembly. Int'l L. Throughout the process, the Sixth Committee as well as theCommission is kept informed of progress and significant developments sothat a political consensus for the final product can be obtained within GA,sometimes an arduous task. Franck, and Mohamed El Baradei, "The Codification andProgressive Development of International Law: A Unitar Study of the Roleand Use of the International Law Commission," American J. [7] Rebecca M. never keen to take up areas ofinternational law where the elements of progressive development . Int'l L. M. AsSinclair pointed out, when ILC took on an ambitious project, drafting auniform Judicial Arbitration Code for settling disputes between states, itsadoption foundered over objections by many less developed countries overthe provision which provided for neutral and enforceable arbitrationof disputes. [3 ] Wallace, 195. [31] Graefrath, 596. INTERNATIONAL LAW COMMISSION This research paper discusses the International Law Commission (ILCor Commission) of the General Assembly (GA) of the United Nations (UN).This overview will focus on its mission, historical origins, compositionand membership, functions, standards and accomplishments. The Hague: Nijhoff, 1977.Sinclair, Sir Ian. that the Commission has not responded adequately to somepast needs, is failing to respond adequately to present needs and it runsthe risk of being unable, on the present basis, to respond adequately tothe probable future needs of international society. The HagueConferences of 1899 and 19 7 resulted in Conventions on the law of war andneutrality. He suggested that it could meet in the summer inNew York as well as in the winter in Geneva. 174 (II), 2 UN GAOR at 296, UN Doc. Comm'm, pt. 49) at 296, UNDoc. [9] Sinclair, 9. Opened for signature, May 23, 1969, 1155 UNTS 331.Wallace, Rebecca M. 52 , 45 UNTS 82.Convention on the Territorial Seas and Contiguous Zone. Herecommended: During the process of the formulating of rules there must be an interactive exchange of views between States and the ILC which is what requires a closer contact between the state representatives and the ILC members responsible for that particular work. When ILC acted on GA's mandate to draft a Conventionconcerning the use of international watercourses, its adoption was delayedfor more than two decades by disputes between states which controlled thesource of these waterways and others. 29, 1958, 15UST 16 L, TIAS No. According to Sinclair, "in fact, the composition ofthe Commission has gradually tended to reflect a mix of academic lawyers,judges, legal advisers or ex-legal advisers to Foreign Ministers, lawyerdiplomats and lawyer politicians."[6] The term of each member was originally set for three years, but wasextended to five years in 195 . Wallace, International Law (London: Sweet & Maxwell,1997), 32. Of the 165 members who haveserved on the Commission since its inception through 1997, only eight havebeen Americans.[1 ] The members of the Commission serve only on a part-time basis, whichhas occasioned some criticism, as discussed below. the success of the workof the International Law Commission is highly dependent upon the politicalacceptance of governments."[17] Early Successes of the Commission According to Sinclair, the early period of the Commission's work(1949-1961) "was reasonably productive."[18] There was a general consensus,even among the Commission's later critics, such as Ramcharan, that its workwas characterized by "high quality of membership, which produce[d] a highquality of work."[19] Noteworthy among ILC's accomplishments during thisperiod were its work in producing draft treaties and conventions, such asthe law on diplomatic relations, on the law of treaties and variousconventions on the law of the seas.[2 ] The International Court of Justice(ICJ) in the Hague called the Vienna Conventions on diplomatic and the 1963convention on consular relations, also drafted by ILC, "of cardinalimportance for the maintenance of good relations between States in theinterdependent world of today."[21] According to the UN's 1997 report onILC, speaking of the 1969 Vienna Convention on the Law of Treaties, "on alarge number of occasions now, the rules which many of its provisions laydown have been declared to possess the status of customary (general)international law by the International Court of Justice, by regional courtsand commissions and by various arbitral tribunals, as well as by UnitedNations treaty-bodies."[22] Equally important were other drafts which according to Graefrath,"have had a long-term effect on the development of international law,"including one on the rights and duties of States, the Nuremberg Codeprinciples, and the Model Rules of Arbitral Procedure.[23] Codification ofrules of international law in these areas generally met little resistancein the world community and involved liberalization in many cases as ILCsought to establish principles of law which represented the moreenlightened view of civilized norms of international conduct. 1949 Y.B. Nevertheless, it has a record ofachievement, based largely on its work in the 4 s, 5 s and early 6 s, inadvancing the cause of international law. of International Law 85 (October 1994): 595-612.Hafner, Gerhard. TheGA itself has the power to insist on the inclusion of topics, as it hasdone occasionally, but Wallace says ILC generally makes the selections andGA intervention in that process is "rare."[13] The work on both reports and draft articles for conventions ispainstaking and tedious. of International Law 76 (1982): 629-638.General Assembly Res. The International Law Commission: The Need for a New Direction. 5639, 516 UNTS 2 5.Draft Declaration on the Rights and Duties of States Report of the International Law Commission of the General Assembly. Comm'm, pt. [23] B. 5969, 559 UNTS 285, Convention onthe High Seas, Apr. He recognized the perennial shortage offunds and research facilities as well as the limited support available toILC from the UN Secretariat and suggested greater use be made ofindependent research facilities at national law schools. A/519(1948). [17] B. 1.Ramcharan,B. Hafner said one reason for this development is that newer"states hesitate to entrust a body consisting of independent experts withthe task of formulating new conventions."[25] In 1981, El Baradei et al.charged that the reason GA frequently by-passed ILC in such areas was thatthe "Commission itself was . . Int'l L. [5] Ibid. Wallace said "draft articles are prepared andsubsequently submitted to member states for their comments. 29, 1958, 15 UST 471, TIAS No. International Law. In one case, the drafting of Articles of the Lawof the Non-Navigational Uses of International Waterways, which seeks toregulate, according to Wallace, "the use of international watercourses andto protect ecosystems and the marine environment," work began in 1971 anddid not end until 1994.[14] Once a topic is placed on the agenda, Sinclairsaid the Commission appoints a sub-committee from among its members "toconsider the scope and nature of the topic and the method to be followed inits study."[15] Once that is approved by the Commission, it assigns thework to one of the members who serves as the Special Rapporteur for thattopic who prepared a preliminary report containing the proposed plan ofwork, which he or she then implements. General Assembly convene a conference of plentipotentiaries to finalize the stature for adoption.[28] The purpose of such a court is "to avoid the inconvenience of the[Security] Council] having to act each time to set up ad hoctribunals."[29] While GA continues to study the matter, the SecurityCouncil has set up such ad hoc tribunals to deal with atrocities in Rwanda,Bosnia and Kosovo. [26] Mohamed El Baradei, Thomas M. Thus, it could be imagined that the special rapporteur addresses directly the States mostly concerned about the relevant draft, and submits his work article by article for scrutiny by the representatives in the sixth Committee.[39] The Commission now has a Planning Committee which is an improvementover prior practice, but if one reads their most recent annual reports, onegets the impression of a debating society working at a glacial pace. 5639, 516 UNTS 2 5. Int'l L. A/CN.4/SER A/195 /Add. New York: United Nations, 1962.Vienna Convention on Diplomatic Relations. "Comments on the International Criminal Code." ILSA J. . of InternationalLaw 76 (1982): 634. 2 at 374, UN Doc. [29] Ibid., 651. of International andComparative Law 2 (Summer 1996): 673. International Law on the Eve of the Twenty-First Century Views From the International Law Commission. . Graefrath, "The International Law Commission: Improving theOrganization and Methods of Work," American J. BibliographyBloom, Evan T. To respond to such concerns, ILC has undertaken some new projectssuch as its drafting a draft statute for an international criminal court, atask entrusted to it by GA in 1992. A/42/49 (1987).General Assembly Res. 42/156, 42 UN GAOR Supp. [3] United Nations General Assembly, Statute of the International LawCommission (New York, 1962). [39] Hafner, 675. . Apr. The Nuremberg Codes broke new ground in the area of human rights bycodifying principles such as that expressed in Principle IV thereof: "Thefact that a person acted pursuant to orders of his Government or of asuperior does not relieve him from responsibility under international law,provided a moral choice was in fact possible to him." Likewise, in theDraft Declaration on the Rights and Duties of States (1949) (which was notadopted, but influenced other Human Rights Conventions which were), the ILCtook an advanced view of human rights when it stated in Article 6: "Eachstate has the duty to treat all persons under its jurisdiction with respectfor human rights and fundamental freedoms without distinction as to race,sex, language, or religion." ILC's work on the Law of the Seas Conventionsserved as a foundation for later conventions on different aspects of thatsubject which were completed by other UN bodies later. However, Sinclair said "the first major official effort tograpple with the problems of the codification of international law ingeneral (as opposed to specific aspects of international law) followed theestablishment in 1924, by the Council of the League of Nations of theCommittee of Experts for the Progressive Codification of InternationalLaw."[4] That Committee, which is the predecessor organization of ILC,produced the draft Hague Codification Conference of 193 which dealt withamong other things certain questions relating to the conflict amongdifferent nationality laws, but Sinclair said it "achieved only meagreresults," owing to the burgeoning differences among the great powers in theearly 193 s.[5] Composition and Membership Article 2 of the ILC statute provides that its members "shall bepersons of recognized competence in international law." In other words, theGeneral Assembly in electing members is supposed to select them for theirprofessional legal expertise and they serve on the Commission not asrepresentatives of governments of the states from which they come, but asleading legal scholars. [2] United Nations, International Law on the Eve of the Twenty-FirstCentury Views From the International Law Commission (New York: UnitedNations, 1997), vi. Thisrelative decline in the effectiveness of ILC is due to changes in themakeup and political agenda of GA and its Sixth Committee which providesoversight over ILC and external funding and staffing constraints but alsoto internal deficiencies of ILC itself, including its reluctance to expandthe scope of its activities and to modernize some of its working methodsand procedures. [33] United Nations, International Law on the Eve of the Twenty-FirstCentury Views From the International Law Commission (New York: UnitedNations, 1997), xv. 29, 1958, 17 UST 138, TIAS No. The International Law Commission Its Approach to the Codification and Progressive Development of International Law. of International and Comparative Law 2 (Summer 1996): 65 . . Int'l L. [13] Wallace, 32. [4 ] United Nations, International Law on the Eve of the Twenty-FirstCentury Views From the International Law Commission (New York: UnitedNations, 1997), xv. 29, 1958, 13 UST 2312, TIAS No. . 1.United Nations, Analytical Guide to the Work of the International Law Commission, 1949-1997. [36] Graefrath, 598. Functions The basic work of the Commission is the preparation of reports ontopics of international law and of draft articles for eventual inclusion ininternational treaties and conventions. 2 at 278, 287; The Principles ofInternational Law Recognized in the Charter of the Nurnberg Tribunal and inthe Judgment of the Tribunal [195 ] 2 Y.B. [15] Sinclair, 33. [6] Ibid., 17. He summarized hiscritique of the Commission's working methods by stating that "too littletime [was] chasing a great deal of work."[34] Sinclair acknowledged that"the present working methods of the Commission leave some room forimprovement."[35] Some members of the Commission have been resistant to change.Graefrath quotes former Chairman Jose Sette-Camara as stating that he took"the whole critical tirade . Comm'm, pt. . [19] Ramcharan, 37. 5578, 499 UNTS 311.Convention on the High Seas. New York: United Nations, 1998.United Nations. Apr. A look at the current agenda, withsuch topics as the protection of diplomatic couriers and diplomatic bags,suggests that the ILC presently occupies a somewhat peripheral role in thedevelopment of international law in a rapidly changing world. [12] Ibid., vii. This is done in thefirst instance by the Commission meeting in plenary sessions which takeplace in Geneva every winter. Statute of the International Law Commission. Criticisms of ILC During the late 197 s and early 198 s and subsequently, ILC has beensubjected to a barrage of criticisms from various sources, most but not allof which have some legitimate basis. of International Law 85(October 1994): 595-612; Draft Declaration on the Rights and Duties ofStates Report of the International Law Commission of the General Assembly,1949 Y.B. Conclusion After a very promising beginning, the International Law Commissionappears to have lapsed into a somewhat limited and static role where mostof its efforts are being devoted to refining further work that has eitheralready been done or which is not very central to main concerns facing theplanet at the turn of the century. (No. [1958] 2 Y.B. According to Sinclair,the decision to have the members serve part-time was made by the SixthCommittee which originally thought that a full-time Commission would be tooexpensive and, in addition, "would make the acceptance of membership moredifficult for the outstanding jurists who would be needed for the work ofcodification of international law."[11] Members are paid only a per diemallowance when they come to the Commission's headquarters which are locatedat the UN's European office in Geneva, Switzerland and a small honorarium. . [32] Hafner, 673. [16] Wallace, 32. The ILC'sinfluence was felt even when proposed treaties or conventions or othercodifications were still in draft form, partly because the ICJ and othercourts around the world began citing them as references to customaryinternational law. G. [24] Ramcharan, 2 3. .outweighed the elements of codification" and that the Sixth Committee waslargely responsible for the "conservative orientation of theCommission."[26] In an article in 1982 Franck and El Baradei said the ILCagenda "has become a veritable What's What of drafting trivia, a parody ofthe world's urgent agenda."[27] The Ramcharan and Baradei criticisms largely reflect the view of theThird World constituency in the UN which increasingly dominates GA andwhose perspective is often at odds with that of more developed nations. . [1 ] United Nations, Analytical Guide to the Work of the InternationalLaw Commission, 1949-1997 (New York: United Nations, 1998), 3 6-312. Apr. to bequite groundless" and said "do not touch my methods of work."[36] Graefrathsaid "most of the members preferred to stick to established procedures,rather than give the impression that there was a need for change."[37] GAby its Resolution 42/156 established a working group of the Sixth Committeeto continue the "efforts to improve the ways in which the report of theInternational Law Commission is considered in the Sixth Committee with aview to providing effective guidance for the Commission in its work."[38]Hafner said one of the continuing problems is the lack of sufficient co-ordination of drafts between the Commission and the Sixth Committee. London: Sweet & Maxwell, 1997.----------------------- [1] General Assembly Res. [25] Gerhard Hafner, "The International Law Commission and the FutureCodification of International Law," ILSA J. Ramcharan, The International Law Commission Its Approach tothe Codification and Progressive Development of International Law (TheHague: Nijhoff, 1977, 132-133. "The International Law Commission and the Future Codification of International Law." ILSA J. A/CN4/SER.A/1958/Add.

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