70 Years of the International Law Commission: Drawing a Balance for the Future

[Christiane Ahlborn and Bart Smit Duijzentkunst are Associate Legal Officers at the Codification Division of the United Nations Office of Legal Affairs in New York. This post, and its sister post on EJIL:Talk!, mark the start of the seventieth session of the International Law Commission. Under the theme “70 years of the International Law Commission: Drawing a Balance for the Future”, commemorative events will be held on 21 May in New York and on 5-6 July in Geneva. In these two posts, Christiane Ahlborn and Bart Smit Duijzentkunst of the Codification Division of the United Nations Office of Legal Affairs, which serves as the secretariat of the Commission, place the role of the Commission in a historical context and discuss its promises and challenges moving forward.

This week the International Law Commission has started its seventieth session in New York. As we discussed on EJIL:Talk!, the Commission stands in the long tradition of a broader codification movement, which has pushed the development of international throughout the 19th and 20th centuries. But what is the role of the Commission today, and what will its future look like? These questions will be discussed during different commemorative events in New York and Geneva this year. Here are the five main themes that will be the focus of the debate.

The Commission and its impact

The Commission has had a considerable impact on the development of international law, and on peaceful international relations more generally. From the 1961 and 1963 Vienna Conventions on Diplomatic and Consular Relations, to the 1969 Vienna Convention on the Law of Treaties and the 1998 Rome Statute of the International Criminal Court, many treaties that form the foundation of the contemporary international legal order have their origins in the work of the Commission.

Seventy years of practice has demonstrated that the Commission’s authority extends beyond the conventions it has instigated. For example, the 2001 articles on State responsibility for internationally wrongful acts remain uncodified, yet they are regularly cited and discussed in the decisions of and submissions to international courts, tribunals and other bodies, as well as in scholarship. “What is the status of the articles on State responsibility?” remains a popular query at Jessup competitions, one that has been answered in a variety of ways. Some argue that, in light of Article 38, paragraph 3(d) of the ICJ Statute, the references to the Commission’s work in judicial decisions constitute a subsidiary means for the determination of international law. Others maintain that the Commission could be considered as a “highly qualified publicist”. In addition, the outcomes of the Commission’s work often reflect customary international law.

Nonetheless, in recent years no outcome of the Commission’s work has been taken up for codification in a multilateral conference. This begs the question whether the Commission should rethink its role in the progressive development and codification of international law in the future. In fact, the Commission has already enlarged its portfolio of different work outcomes. While some projects still proceed on the basis of ‘draft articles’ (e.g. the draft articles on crimes against humanity), others are formulated in terms to guidelines (e.g. the draft guidelines on provisional application of treaties) or conclusions (e.g. the draft conclusions on subsequent agreements and subsequent practice).

The working methods of the Commission

The Commission functions like a legislative drafting body. The topics on its agenda are typically assigned to a Special Rapporteur, who leads the Commission’s research, proposes texts for adoption and drafts related commentaries. The Commission debates the reports of its Special Rapporteurs in plenary and refines texts in the Drafting Committee, until they are ready for adoption. It sends all draft instruments for comments and observations to governments and possibly other institutions (“first reading”). After considering the replies, the Commission submits to the General Assembly a final text with commentaries (“second reading”), together with a recommendation for further action.

This process can produce swift results, but it may also take decades. For example, in 1972 the Commission needed only one session to adopt the articles on the prevention and punishment of crimes against diplomatic agents and other internationally protected persons. On the other hand, it took the Commission about fifty years and five Special Rapporteurs to complete, in 2001, the final set of the articles on State responsibility for internationally wrongful acts.

There are several reasons why the Commission may be less agile than a domestic legislator: it only meets part-time and typically adopts outcomes by consensus, rather than by vote. Still, given the more diversified nature of the outcomes of the Commission’s work, and changing practical needs of States, international organizations and other stakeholders interested in the Commission’s work, should the Commission revise its working methods? The Commission has continuously adapted its methods of work to face new challenges, and its 70th anniversary might offer another opportunity to suggest revisions.

The function of the Commission: How much identifying existing law, how much proposing new law?

The Commission is mandated to promote the “progressive development of international law and its codification”. Article 15 of the Commission’s Statute defines progressive development as “the preparation of draft conventions on subjects which have not yet been regulated by international law or in regard to which the law has not yet been sufficiently developed in the practice of States” and codification as “the more precise formulation and systematization of rules of international law in fields where there already has been extensive State practice, precedent and doctrine.” In practice, most of the projects of the Commission have involved both aspects of its mandate and the Commission is often hesitant to indicate on which process it relies in specific cases.

Despite the Commission’s reluctance to draw the distinction, the tension between progressive development and codification continues to be the subject of debate in both scholarship and practice. This raises the question whether the distinction between progressive development and codification of international law should be drawn more explicitly, if feasible at all. Is it easier to make the distinction for some topics than for others? And should the Commission emphasize the consolidation of existing law, or should it emphasize the development of new law?

The changing landscape of international law

At its first session, in 1949, the Commission reviewed, on the basis of the survey of international law prepared by the Secretariat, 25 topics for possible inclusion in a list of topics for study. Following its consideration of the matter, the Commission drew up a provisional list of 14 topics selected for codification. With the exception of “Recognition of States and Governments” and “Jurisdiction with regard to crimes committed outside national territory”, the Commission has directly or indirectly considered all of these topics (see the analytical guide to the work of the Commission for an overview of all topics).

The world of international law today is quite different than that of 1949, in part thanks to the Commission’s codification efforts. During the past 70 years, the Commission – with the help of its Secretariat – has kept abreast of on-going developments in international law. Yet like all of us, the Commission faces rapid changes in international relations and in technological capabilities, often requiring novel approaches and scientific expertise. New domains – cyberspace, the polar regions, maritime areas beyond national jurisdiction – and new actors – international organizations, individuals, or corporations – challenge the Commission to constantly rethink its priorities. The Commission has demonstrated its awareness of contemporary challenges, for example by drafting articles on the law of transboundary aquifers, by taking up the topic “Protection of the atmosphere”, and by adding the topic of “Protection of personal data in transborder flow of information” to its long-term programme of work. Participants to the commemorative events for the Commission’s 70th anniversary will further consider how the changing landscape of international law affects the Commission’s substantive work going forward.

The authority and the membership of the Commission in the future

The authority of the Commission depends on various factors, including its membership and its status as a subsidiary organ of the General Assembly. Since its establishment, the membership of the Commission has been enlarged from 15 in 1949 to 34 members at present. The members are elected, in their personal capacity, by the General Assembly for a five-year term, with due consideration to equitable representation of the five regional groups at the United Nations. The equitable regional representation distinguishes the Commission from other codification bodies and ensures that the Commission incorporates different legal traditions and perspectives. Candidates for membership are drawn from the various segments of the international legal community, such as academia, the diplomatic corps, government ministries and international organizations. As the members typically serve in other international law-related professions, the Commission remains in close touch with the realities of international life.

Nonetheless, the Commission faces some challenges with regard to its composition. Perhaps most prominent is the severe underrepresentation of women in its membership. The number of women on the current Commission is four – twice as many as in the previous quinquennium, but still less than 12 per cent of its total membership. In 70 years, the Commission has had only seven female members and one woman as its Chair (Ms. (now Judge) Hanqin Xue in 2010). As the nomination of candidates lies with United Nations Member States, it is for the nominating States, the General Assembly and the Commission together to improve the gender balance among its ranks. Other issues that might be considered during the commemorative events are how the Commission could enhance its relationship with the General Assembly, in particular its Sixth (Legal) Committee; and how the different legal traditions, regional origins, and professions of its members influence its work.