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Comparative International Law Within, Not Against, International Law: Lessons from the International Law Commission

Published online by Cambridge University Press:  20 January 2017

Mathias Forteau
Mathias Forteau*
Affiliation:
University of Paris Ouest (Nanterre-La Défense)
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Extract

Public international law and comparative law have so far been regarded as largely distinct fields, with little to no overlap between them. The degree of separation between the two disciplines is rendered in particularly stark relief by the absence in practice or scholarship of any real inquiry into the relationship between comparative law on the one hand and customary international law and general principles of international law on the other. Some eminent international lawyers go so far as to claim that it would be both unnecessary and unrealistic to have recourse to comparative law in the context of the identification of customary international law and general principles of law, pointing to the case law of the Permanent Court of International Justice and the International Court of Justice, which, according to them, “show[s] a clear disinclination towards the use of the comparative method.”

Type
Exploring Comparative International Law
Information
American Journal of International Law , Volume 109 , Issue 3 , July 2015 , pp. 498 - 513
Copyright
Copyright © American Society of International Law 2015

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References

1 See Ellis, Jaye, General Principles and Comparative Law, 22 Eur. J. Int’l L. 949, 949–50 (2011)CrossRefGoogle Scholar. But see Rudolph Schlesinger et al., Comparative Law 42–47 (1998). On comparative International Law and general principles of law, see also infra, Jain, Neha, Comparative International Law at the ICTY: The General Principles Experiment, 109 AJIL 486 (2015)CrossRefGoogle Scholar.

2 Pellet, Alain, Article 38, in The Statute of the International Court of Justice: A Commentary 677, 769–72 (Zimmermann, Andreas et al. eds., 2006)Google Scholar.

3 See Jouannet, Emmanuelle, Les Visions Franc¸aise et Américaine du Droit International, in Droit International et Diversité des Cultures Juridiques [International Law and Diversity of Legal Cul Tures] 43, 88–89 (2008)Google Scholar. For more detailed treatment, see Roberts, Anthea, Comparative International Law? The Role of National Courts in Creating and Enforcing International Law, 60 Int’l & Comp. L.Q. 57, 73–92 (2011)CrossRefGoogle Scholar (characterizing “comparative international law” as a “phenomenon... which loosely fuses international law sub stance with comparative law methodologies”).

4 See Bennouna, Mohamed, Droit International et Diversité Culturelle, in International Law on the Eve of the Twenty-First Century: Views From the International Law Commission 79, 81 (1997)Google Scholar [hereinafter International Law], available at http://legal.un.org/docs/?path=../ilc/publications/pdfs/21stcentury.pdf&lang=E.

5 As Lauterpacht put it, the idea of international law presumes an inherently international, not domestic, nature. Lauterpacht, Hersch, Régles G´enérales du Droit de la Paix, 62 Recueil des Cours 95, 200 (1937 IV)Google Scholar (“En fait, il est difficile d’accepter comme logique toute conception nationale du droit international. La conception du droit international est par essence internationale.”).

6 See Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, G.A. Res. 2625 (XXV), Annex (Oct. 24, 1970) (“Every State has an inalienable right to choose its political, economic, social and cultural systems....”).

7 See Xue, Hanqin, Meaningful Dialogue Through a Common Discourse: Law and Values in a Multi-Polar World, 1 Asian J. Int’l L. 13, 13 (2011)CrossRefGoogle Scholar (“Although regional perceptions might contribute to a more nuanced under standing of global efforts in dealing with these challenges, the very idea of truly ‘international’ law renders the regional approach controversial.”); see also Koskenniemi, Martti, The Case for Comparative International Law, 20 Finnish Y.B. Int’l L. 1, 3–4 (2009)Google Scholar (making similar observations).

8 This practical function of comparative law is sometimes neglected by comparative lawyers. See, e.g., Merryman, John Henry, Comparative Law and Scientific Explanation, in The Loneliness of the Comparative Lawyer 478 (1999)Google Scholar.

9 Xue, supra note 7, at 17.

10 Owada, Hishashi, Asia and International Law: The Inaugural Address of the First President of the Asian Society of International Law Singapore, 7 April 2007, 1 Asian J. Int’l L. 3, 9 (2011)CrossRefGoogle Scholar (footnote omitted); see also Chimni, B. S., Is There an Asian Approach to International Law? Questions, Theses, and Reflections, 14 Asian Y.B. Int’l L. 249 (2008)Google Scholar (pointing to the necessity of taking due account of each country, region, or civilization’s perspectives when identifying international law).

11 The Commission was created by United Nations General Assembly Resolution 174 (II), dated November 21, 1947. G.A. Res. 174 (II) (Nov. 21, 1947).

12 Un Secretariat, Survey of International Law in Relation to the Work of Codification of the International Law Commission, Memorandum Submitted by the Secretary-General, ¶ 11, UN Doc. A/Cn.4/1/Rev.1 (Feb. 10, 1949).

13 Sucharitkul, Sompong, Legal Multiculturalism and the International Law Commission, in Multiculturalism and International Law 301, 313–14 (Yee, Sienho & Morin, Jacques-Yvan eds., 2009)CrossRefGoogle Scholar; see also UN Secretariat, supra note 12, ¶ 111.

14 See Crawford, James, Chance, Order, Change: The Course of International Law; General Course on Public International Law, 365 Recueil des Cours 1, 251–52 (2013)Google Scholar.

15 Statute of the International Law Commission, Ga. Res. 174 (II), Annex, art. 1 (Nov. 21, 1947) [hereinafter ILC Statute], available at http://legal.un.org/docs/?path=../ilc/texts/instruments/english/statute/statute.pdf&lang=Ef, amended by G. A. Res. 485 (V) (Dec. 12, 1950); G. A. Res. 984 (X) (Dec. 3, 1955); Ga. Res. 985 (X) (Dec. 3, 1955); Ga. Res. 36/39 (Nov. 18, 1981).

16 Id. art. 15.

17 See Ago, Roberto, La Codification du Droit International et les Problémes de sa R´ealisation, in MéLanges Gug Genheim 93, 93–96 (1968)Google Scholar.

18 ILC Statute, supra note 15, art. 8. The thirty-four members of the Commission are elected by the General Assembly of the United Nations. Id. art. 3.

19 See id. art. 9.

20 Koskenniemi, supra note 7, at 7.

21 International Law Commission, Summary Records of the 3150th Meeting, 4, UN Doc. A/CN.4/Sr.3150 (Aug. 17, 2012).

22 See UN Secretary-General, Regulations Governing the Status, Basic Rights and Duties of Officials other than Secretariat Officials, and Experts on Mission, Secretary-General’s Bulletin, Regulation 1(b), UN Doc. ST/SGB/2002/9 (June 18, 2002).

23 The expression has been used to describe the American Law Institute’s work on the Restatements on U.S. law, which is, to some extent, similar to the work done by the Commission. See Kristen Adams, David, Blaming the Mir ror: The Restatements and the Common Law, 40 Ind. L. Rev. 205, 244 (2007)Google Scholar.

24 James Crawford, Universalism and Regionalism from the Perspective of the Work of the International Law Com mission, in International Law, supra note 4, at 99, 103, 113.

25 Id. at 113.

26 See Statute of the African Union Commission on International Law, art.4, A.U. Doc. EX.CL/478 (XIV) (Feb. 4, 2009) (providing that the Commission will “undertake activities relating to codification and progressive development of international law in the African continent with particular attention to the laws of the Union as embodied in the treaties of the Union, in the decisions of the policy organs of the Union and in African customary international law arising from the practice of Member States”), available at http://www.jus.uio.no/english/services/library/treaties/14/14-03/au-african-ilc.xml; see also id. art. 5(1), 6(1).

27 See International Law Commission, Summary Records of the 3146th Meeting, 6, 9, UN Doc. A/CN.4/Sr.3146 (Aug. 13, 2012).

28 See UN Secretariat, supra note 12, ¶ 5.

29 See Sucharitkul, supra note 13, at 310.

30 See, as the most significant example, the very detailed Memorandum on Expulsion of Aliens prepared by the Secretariat in 2006. UN Secretariat, Expulsion of Aliens, Memorandum by the Secretariat, Int’l Law Comm’n, UN Doc. A/CN.4/565 (July 10, 2006).

31 Roberts, supra note 3, at 81–91.

32 Id. at 60.

33 ILC Statute, supra note 15, art. 24.

34 Rep. of the Int’l Law Comm’n, 2nd Sess., June 5–July 29, 1950, at 4, UN Doc. A/1316; Gaor, 5th Sess., Supp. No. 12 (1950). For related documents, see Analytical Guide to the Work of the International Law Commission: Ways and Means for Making the Evidence of Customary International Law More Readily Available, International Law Commission, at http://legal.un.org/ilc/guide/1_4.shtml (last updated July 15, 2015).

35 When the Commission adopts a text on first reading, states are invited to submit their written comments and observations. In practice, only a few of them do it. For instance, fewer than 20 states (among the 193 member states of the United Nations) responded to the draft articles adopted on first reading in 2012 on the expulsion of aliens, even though the articles raise many issues of domestic law. in addition, the Commission frequently asks states to provide relevant information on more specific issues. This increasing practice is a source of concern for many states. in 2014, it was observed in the Sixth Committee of the UN General Assembly “that the list of specific issues on which comments were requested from States by the Commission was excessively long, making it difficult for most States to comply within the time limits. Concerns were also voiced that only a minority of States provided comments to the Commission, which was due to disparities of resources among States rather than a lack of interest.” International Law Commission, Topical Summary of the Discussion Held in the Sixth Committee of the General Assembly During its Sixty-Ninth Session, Prepared by the Secretariat, ¶ 88, UN Doc. A/CN.4/678 (Jan. 21, 2015).

36 See the Visit and Statement of the Chairman of the AUCIL, announcing that the African Commission is “preparing to publish a digest of the case law and practice of Member States, international legal texts regarding the regional economic communities, the case law of regional courts, the travaux préparatoires of African Union treaties and such diplomatic correspondence as could be made public.” International Law Commission, Provisional Sum mary Record of the 3230th Meeting, at 3, UN Doc. A/CN.4/SR.3230 (Oct. 9, 2014).

37 International Law Commission, Identification of Customary International Law: Statement of the Chairman of the Drafting Committee, at 14 (Aug. 7, 2014), at http://legal.un.org/ilc/sessions/66/pdfs/english/dc_chairman_statement_identification_of_custom.pdf

38 Compare to Rules of Court, International Court of Justice, art. 50, at http://www.icj-cij.org/documents/index.php?p1=4&p2=3& (distinguishing between documents that are published and “readily available” and other documents (emphasis added)).

39 See Rep. of the Int’l Law Comm’n, 66th Sess., May 5–June 6, July 7–Aug. 8, 2014, at 247, UN Doc. A/69/10; Gaor, 69th Sess., Supp. No. 10 (2014).

40 See, in particular, G.A. Res. 51/157, Annex ¶ 21 (Dec. 16, 1996).

41 G.A. Res. 50/11, pmbl. (Nov. 15, 1995).

42 This is particularly the case because the translation of precise concepts into six languages is not an easy task. See Alland, Denis, L’Interprétation du Droit International Public, 362 Recueil des Cours 41, 283 n.640 (2012)Google Scholar.

43 International Law Commission, supra note 37, at 19 (Draft Conclusion 8 on Identification of Customary International Law provisionally adopted by the Drafting Committee in 2014).

44 See Rep. of the Int’l Law Comm’n 58th Sess., May 1–June 9, July 3–Aug. 11, 2006, at 73–74, UN Doc. A/61/10; Gaor, 61st Sess., Supp. No. 10 (2006) (paragraph 8 of the commentary to Draft Article 14).

45 See Rep. of the Int’l Law Comm’n, 43rd Sess., Apr. 29–July 19, 1991, at 18–20, UN Doc. A/46/10; Gaor, 46th Sess., Supp. No. 10 (1991) (paragraph 11 of the commentary to Draft Article 2).

46 See Rep. of the Int’l Law Comm’n, 64th Sess., May 7–June 1, July 2–Aug. 3, 2012, at 70, UN Doc. A/67/10; Gaor, 67th Sess., Supp. No. 10 (2012) (paragraph 11 of the commentary to Draft Article 26 of the Draft Articles on Expulsion of Aliens).

47 See Rep. of the Int’l Law Comm’n, 65th Sess., May 6–June 7, July 8–Aug. 9, at 63–65, UN Doc. A/68/10; GAOR, 68th Sess., Supp. No. 10 (2013) (paragraphs 10–12 of the commentary to Draft Article 3). In other situations, the Commission decided to disregard a specific state practice on the grounds that it was not compatible with the specific nature of the rule adopted by the Commission. For example, the Commission concluded that prosecutorial discretion to grant immunity, which is recognized in some legal systems, is not compatible with “the interests of the international community as a whole” in the case of genocide. See Rep. of the Int’l Law Comm’n, 48th Sess., May 6–July 26, 1996, at 31, UN Doc. A/51/10; Gaor 51st Sess., Supp. No. 10 (1996) (paragraph 4 of the commentary to Draft Article 9).

48 See Rep. of the Int’l Law Comm’n, supra note 46, at 29–30 (paragraph 4 of the commentary to Draft Article 6).

49 See Rep. of the Int’l Law Comm’n, supra note 44, at 94–100 (Draft Article 19 and its commentary).

50 Id.

51 For another example where the difficulty was to decide whether a practice was worth being codified rather than assessing its “cultural” universality, see Rep. of the Int’l Law Comm’n, 41st Sess., May 2–July 21, 1989, at 292–95, UN Doc. A/44/10; GAOR 44th Sess., Supp. No. 10 (1989). Some members of the Commission felt that further clarification of the socialist “legal concept of a State enterprise with segregated State property” was needed, while at the same time considering that “the legal implications [of this concept] for developing countries would have to be carefully studied” and that it was not clear to what extent “the practice of socialist States could be applied to other States.” Id.

52 Id. at 281.

53 On the continuing importance of functionality and functional equivalence in contemporary comparative scholarship, see generally Themethod and Culture of Comparative Law: Essays in Honour of Mark Van Hoecke 8–9 (Maurice Adams & Dirk Heirbaut eds., 2014) [hereinafter Method and Culture].

54 Rep. of the Int’l Law Comm’n, supra note 45, at 20–21 (paragraph 12 of the commentary to Draft Article 2).

55 Rep. of the Int’l Law Comm’n, supra note 39, at 236 (paragraph 16 of the commentary to Draft Article 2).

56 The relevant issue here is not to adopt a new rule but to find a way to express an existing (unwritten) rule of international law in a way that is compatible with different approaches to the said rule.

57 See Rep. of the Int’l Law Comm’n, supra note 46, at 42 (paragraph 3 of the commentary to Draft Article 14).

58 For an interesting analysis of techniques such as the margin of appreciation as a means of ensuring “sustainable diversity in law,” see Patrick Glenn, Legal Traditions of the World 379–81 (2010).

59 See Alain Wijffels, “Ius Commune,” Comparative Law and Public Governance, in Method and Culture, supra note 53, at 147, 151–53.

60 Rep. of the Int’l Law Comm’n, supra note 44, at 72 (paragraph 4 of the commentary to Draft Article 14).

61 Id.

62 Rep. of the Int’l Law Comm’n, supra note 45, at 50.

63 Id. at 51 (paragraph 3 of the commentary to Draft Article 16).

64 Id.

65 Id.

66 Id. at 53 (paragraph 13 of the commentary to Draft Article 16).

67 Rep. of the Int’l Law Comm’n, 53rd Sess., Apr. 23–June 1, July 2–Aug. 10, 2001, at 43, UN Doc. A/56/10; GAOR , 56th Sess., Supp. No. 10 (2001) (paragraph 6 of the commentary to Article 5 of the Articles on Responsibility of States for Internationally Wrongful Acts).

68 Rep. of the Int’l Law Comm’n, supra note 45, at 14 (paragraph 3 of the commentary to Article 2).

69 See UN Secretariat, supra note 12, ¶ 105 (“[I]n so far as the object of codification is to reconcile divergencies [sic] and remove causes of friction, that object can be achieved only imperfectly by drafts and conventions which may conceal continued disagreement behind the cloak of a vague and elastic statement of general principle.”).

70 Rep. of the Int’l Law Comm’n, supra note 39, at 26.

71 Id. at 27–28 (paragraph 3 of the commentary).

72 Rep. of the Int’l Law Comm’n, supra note 45, at 14.

73 Id. at 20 (paragraph 27 of the commentary).

74 Id.

75 Rep. of the Int’l Law Comm’n, 48th Sess., May 6–July 26, 1996, at 23, UN Doc. A/51/10; GAOR 51st Sess., Supp. No. 10 (1996) (paragraph 4 of the commentary to Article 3).

76 Id. at 22.

77 Id. at 39.

78 Id. at 40 (paragraph 6 of the commentary to Article 14).

79 Grossfeld, Bernhard, Core Questions of Comparative Law 12 (Curran, Vivian Grosswald trans., 2005)Google Scholar.

80 See Convention on the Protection and Promotion of the Diversity of Cultural Expressions, pmbl., Oct. 20, 2005, 2440 UNTS 311 (“Affirming that cultural diversity is a defining characteristic of humanity, Conscious that cultural diversity forms a common heritage of humanity and should be cherished and preserved for the benefit of all.”).