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The International Law Commission Tomorrow: Improving its Organization and Methods of Work

Published online by Cambridge University Press:  27 February 2017

B. Graefrath
B. Graefrath*
Affiliation:
Berlin, member of the International Law Commission, 1987—1991.
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Extract

The history, operation and tasks of the International Law Commission (ILC) have often been described and its success in codifying general international law is well-known and widely acknowledged. The conduct of international relations today is unthinkable without such basic instruments, first drafted by the Commission, as the conventions on diplomatic and consular relations, the law of treaties and the law of the sea. Moreover, other ILC drafts that have not been adopted as treaties have had a long-term effect on the development of international law; for example, the Draft Declaration on the Rights and Duties of States, the Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal, and the Model Rules on Arbitral Procedure.

Type
Research Article
Information
American Journal of International Law , Volume 85 , Issue 4 , October 1991 , pp. 595 - 612
Copyright
Copyright © American Society of International Law 1991

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References

1 See The Work of the International Law Commission, UN Sales No. E.88.V. 1 (4th ed. 1988) [hereinafter Secretariat Study]; I. Sinclair, The International Law Commission (1987); H. Briggs, The International Law Commission (1965); Rosenne, The International Law Commission 1949–59, 36 Brit. Y.B. Int’l L. 104 (1960); Lee, The International Law Commission Re-Examined, 59 AJIL 545 (1965).

2 Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 23 UST 3227, TIAS No. 7502, 500 UNTS 95; Vienna Convention on Consular Relations, Apr. 24, 1963, 21 UST 77, TIAS No. 6820, 596 UNTS 261.

3 Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, 1155 UNTS 331.

4 Convention on the Continental Shelf, Apr. 29, 1958, 15 UST 471, TIAS No. 5578, 499 UNTS 311; Convention on Fishing and Conservation of the Living Resources of the High Seas, Apr. 29, 1958, 17 UST 138, TIAS No. 5969, 559 UNTS 285; Convention on the High Seas, Apr. 29, 1958, 13 UST 2312, TIAS No. 5200, 450 UNTS 82; Convention on the Territorial Sea and Contiguous Zone, Apr. 29, 1958, 15 UST 1606, TIAS No. 5639, 516 UNTS 205.

5 Report of the International Law Commission to the General Assembly, 1949 Y.B. Int’l L. Comm’n, pt. 2 at 278, 287.

6 [1950] 2 Y.B. Int’l L. Comm’n, pt. 2 at 374, UN Doc. A/CN.4/SER.A/1950/Add.1.

7 Report of the International Law Commission on its tenth session, [1958] 2 Y.B. Int’l L. Comm’n 78, 83, UN Doc. A/CN.4/SER.A/1958/Add.1.

8 For a detailed analysis of the role of the Commission in the creation of international law, see B. Ramcharan, The International Law Commission—its Approach to the Codification and Progressive Development of International Law 20 (1977); I. Sinclair, supra note 1, at 120.

9 For the influence of the draft articles, whose first reading was completed by the Commission in 1980, see, e.g., United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 ICJ Rep. 3, para. 56 (Judgment of May 24); Rainbow Warrior Case (N.Z. v. Fr.), 19 R. Int’l Arb. Awards 199 (1986). See also I. Sinclair, supra note 1, at 113.

10 Rosenne, supra note 1, at 111; see also Rosenne, Relations Between Governments and the International Law Commission, 19 Y.B. World Aff. 183 (1965) [hereinafter Government Relations].

11 See Sette-Camara, The International Law Commission: Discourse in Method, in 1 International Law at the Time of Its Codification: Essays in Honour of Roberto Ago 467, 477 (1987).

12 Rosenne, Government Relations, supra note 10, at 183; see also Lee, supra note 1, at 547.

13 GA Res. 43/51, 43 UN GAOR Supp. (No. 49) at 276, UN Doc. A/43/49 (1988).

14 GA Res. 44/21, 44 UN GAOR Supp. (No. 49) at 29, UN Doc. A/44/49 (1989).

15 GARes. 44/23, id. at 31.

16 M. El Baradei, T. Franck & R. Trachtenberg, The International Law Commission: The Need for a New Direction (UNITAR Policy and Efficacy Studies No. 1), UN Sales No. E.81.XV.PE/1 (1981) [hereinafter UNITAR Study].

17 Id. at 4.

18 Supra note 16.

19 B. Ramcharan, supra note 8.

20 It seems to me that Sette-Camara, supra note 11, at 480–81, missed the point of these comments in responding

that there is no reason whatsoever to bemoan the by-passing of the Commission in the work undertaken by other bodies. All such work is for the benefit and advancement of international law. And the Commission, which [has] had its hands full for forty years, harbours no grievance or jealousy over the fact that other bodies working for the United Nations and the General Assembly made their contributions—sometimes of excellent quality and extreme importance.

21 UNITAR Study, supra note 16, at 5.

22 Id. at 3.

28 B. Ramcharan, supra note 8, at xi.

24 I. Sinclair, supra note 1, at 41; B. Ramcharan, supra note 8, at 48; Lee, supra note 1, at 551.

25 UNITAR Study, supra note 16, at 28; B. Ramcharan, supra note 8, at 40; Lee, supra note 1, at 556. Contra Sette-Camara, supra note 11, at 499.

26 UNITAR Study, supra note 16, at 17, 20; Rosenne, sufra note 1, at 117, 121. Contra I. Sinclair, supra note 1, at 9, 12; Nawaz, On Ways and Methods for Improving the Work of the International Law Commission, 25 Indian J. Int’l L. 634, 639 (1985); Lee, supra note 1, at 548; Jennings, Recent Developments in the International Law Commission: Its Relation to the Sources of International Law, 13 Int’l & Comp. L.Q. 385, 394 (1964) (who “shudder[s] to think what sort of body [the ILC] would become if it carried full-time salaried and pensioned employment for defunct practitioners and judges”); Sette-Camara, supra note 11, at 499 (who feared that by adopting this proposal the ILC would “lose eminent personalities” and argued that “even in present circumstances, the Commission’s capacity to digest the Special Reports is limited”).

27 B. Ramcharan, supra note 8, at 46, 50; UNITAR Study, supra note 16, at 30.

28 I. Sinclair, supra note 1, at 31; UNITAR Study, supra note 16, at 26; Nawaz, supra note 26, at 641.

29 B. Ramcharan, supra note 8, at 73; UNITAR Study, supra note 16, at 26; Nawaz, supra note 26, at 641.

30 Sette-Camara, supra note 11, at 502.

31 See UNITAR Study, supra note 16, at 10; see also UN Doc. A/CN.4/SR.2202, at 13 (1990); 44 UN GAOR C.6 (33d mtg.) at 26–27, UN Doc. A/C.6/44/SR.33 (1989); id. (37th mtg.) at 17, UN Doc. A/C.6/44/SR.37.

32 See UN Doc. A/CN.4/SR.2149, at 4 (1990). See also the statements by Canada and Australia in the Sixth Committee, 44 UN GAOR C.6 (33d mtg.), supra note 31, at 18, paras. 85, 88. The future work of the Commission and its working methods were also extensively discussed at the 45th session of the General Assembly. See, e.g., UN Docs. A/C.6/45/SR.33, paras. 74–83 (1990) (Federal Republic of Germany); A/C.6/45/SR.37, paras. 16–37 (1990) (United Kingdom); A/C.6/45/SR.38, paras. 65–71 (1990) (Austria).

33 See UN Doc. A/CN.4/SR.2200, at 8 (1990).

34 Report of the International Law Commission on the work of its forty-second session, 45 UN GAOR Supp. (No. 10) at 290–91, para. 546, UN Doc. A/45/10 (1990) [hereinafter ILC 1990 Report]. See also UN Docs. A/CN.4/SR.2202, at 11-13 (1990), and A/CN.4/SR.2250 (1991).

35 McCaffrey, The Forty-second Session of the International Law Commission, 84 AJIL 930, 943 (1990) [hereinafter McCaffrey, Forty-second Session]; see also McCaffrey, The International Law Commission and its efforts to codify the International Law of Waterways, 47 Schweizerisches Jahrbuch für Internationales Recht 32, 42 (1990) [hereinafter McCaffrey, Waterways].

36 See I. Sinclair, supra note 1, at 21; B. Ramcharan, supra note 8, at 79; UNITAR Study, supra note 16, at 24.

37 Statute of the International Law Commission, Art. 15, GA Res. 174 (II), 2 UN GAOR (Res.) at 296, UN Doc. A/519 (1948). The ILC Statute has been amended several times by the General Assembly.

38 These items are the status of the diplomatic courier and the diplomatic bag not accompanied by diplomatic courier, the Draft Code of Crimes against the Peace and Security of Mankind, the law of the non-navigational uses of international watercourses, international liability for injurious consequences arising out of acts not prohibited by international law, and relations between states and international organizations. For a description of the work of the ILC on these topics, see Secretariat Study, supra note 1.

39 ILC Statute, supra note 37, Art. 15.

40 Report of the International Law Commission on the work of its eighth session, [1956] 2 Y.B. Int’l L. Comm’n 253, 256, para. 26, UN Doc. A/CN.4/SER.A/1956/Add.1. See also Rosenne, supra note 1, at 142; B. Ramcharan, supra note 8, at 19; Jennings, supra note 26, at 386; I. Sinclair, supra note 1, at 46; Sette-Camara, supra note 11, at 487.

41 The importance of the interplay between the Sixth Committee and the Commission was stressed at the last session of the General Assembly. See UN Docs. A/C.6/45/SR.33, paras. 75, 76 (1990) (Federal Republic of Germany); A/C.6/45/SR.37, paras. 16–24 (1990) (United Kingdom); A/C.6/45/SR.38, para. 67 (1990) (Austria).

42 This remains the decisive aspect in determining the nature of the Commission, though many of its members are high officials in the foreign ministry of their countries and even represent them in the Sixth Committee.

43 See 44 UN GAOR C.6 (33d mtg.), supra note 31, at 13 (statement of the UK representative); id. (37th mtg.) at 19 (statement of the Australian representative). See also Rosenne, Government Relations, supra note 10, at 197; B. Ramcharan, supra note 8, at 108.

44 Vienna Convention on Succession of States in respect of Treaties, Aug. 22, 1978, 3 United Nations Conference on Succession of States in Respect of Treaties, Official Documents, UN Sales No. F.79.U.10(1979), reprinted in 17 ILM 1488 (1978); Vienna Convention on Succession of States in respect of State Property, Archives and Debts, Apr. 8, 1983, UN Doc. A/CONF.117/14 (1983), reprinted in 22 ILM 306 (1983).

48 Opened for signature Dec. 16, 1969, Annex to GA Res. 2530 (XXIV) (Dec. 8, 1969).

46 In 1989 the ILC referred the completed draft articles to the General Assembly and recommended that it convene a diplomatic conference on the subject. No such action has been taken as yet.

47 See ILC 1990 Report, supra note 34, ch. 11(C), at 36.

48 Id. at 52, paras. 155–56. This approach was welcomed by many states in the Sixth Committee. See, e.g., UN Docs. A/C.6/45/SR.33, para. 79 (1990) (Federal Republic of Germany); A/C.6/45/SR.37, para. 33 (1990) (United Kingdom).

49 GA Res. 42/156, 42 UN GAOR Supp. (No. 49) at 296, UN Doc. A/42/49 (1987).

50 43 UN GAOR C.6 (40th mtg.) at 5, para. 18, UN Doc. A/C.6/43/SR.40 (1988).

51 I. Sinclair, supra note 1, at 21; B. Ramcharan, supra note 8, at 79; UNITAR Study, supra note 16, at 24.

52 UNITAR Study, supra note 16, at 24.

53 See I. Sinclair, supra note 1, at 31; Report of the International Law Commission on the work of its thirty-ninth session, 42 UN GAOR Supp. (No. 10) at 127–28, para. 232; ILC 1990 Report, supra note 34, at 287, para. 538.

54 Statement by the representative of the United Kingdom, 44 UN GAOR C.6 (33d mtg.), supra note 31, at 14, para. 44.

56 UNITAR Study, supra note 16, at 26; see also statement of the representative of Poland, 44 UN GAOR C.6 (37th mtg.), supra note 31, at 7, para. 23.

56 Commentators have noted that governments do not adequately contribute to the work of the ILC. Briggs found that states’ overall record in submitting written comments was “not good.” Briggs, Official Interest in the Work of the ILC: Replies of Governments to Requests for Information or Comment, 48 AJIL 603, 611 (1954). More recently, there were only 28 responses to the draft on the status of the diplomatic courier, and 29 to that on jurisdictional immunities of states. See Yankov, Eighth Report on the Status of the Diplomatic Courier and the Diplomatic Bag, UN Doc. A/CN.4/417 (1988); Status of the Diplomatic Courier and the Diplomatic Bag: Comments and Observations Received from Governments, UN Doc. A/CN.4/409/Adds.1–4 (1988); UN Doc. A/CN.4/SR.2114, at 11 (1990) (remarks of Mr. Ogiso on jurisdictional immunities draft).

Rosenne, however, observed that “while the figures could certainly be bettered, they are nonetheless impressive.” Rosenne, Government Relations, supra note 5, at 193; see also Rosenne, supra note 1, at 146.

57 I. Sinclair, supra note 1, at 32. Sette-Camara, supra note 11, at 499, goes even further: “the present pace of work is satisfactory and … any device adopted to accelerate it would be harmful to the quality and authority of the product.”

58 See, e.g., 44 UN GAOR C.6 (33d mtg.), supra note 31, at 13–14, paras. 41–46 (statement of UK representative); id. (37th mtg.) at 8,19, paras. 39,90 (statements of the Polish and Australian representatives, respectively).

59 Note 47 supra. For GA Res. 44/39, see 44 UN GAOR Supp. (No. 49) at 311, UN Doc. A/44/49 (1989).

60 GA Res. 3166, 28 UN GAOR Supp. (No. 30) at 146, UN Doc. A/9407 (1973). The idea of drawing up such a convention was raised in the ILC in 1971. At the end of that year, the General Assembly asked the Commission to draft a set of articles on the topic. GA Res. 2780, 26 UN GAOR Supp. (No. 29) at 137, UN Doc. A/8537 (1971). At its next session the Commission set up a working group; the working group drew up 12 articles, which were then adopted by the Commission, all at the same session. [1972] 1 Y.B. Int’l L. Comm’n 279, UN Doc. A/CN.4/SER.A/1972. The General Assembly considered the draft at its 27th and 28th sessions and adopted the Convention on December 14, 1973. See UNITAR Study, supra note 16, at 16; B. Ramcharan, supra note 8, at 45; I. Sinclair, supra note 1, at 31.

61 McCaffrey, Forty-second Session, supra note 35, at 942.

62 The eventual form the work of the Commission will take influences its entire approach to a topic. See B. Ramcharan, supra note 8, at 73; UNITAR Study, supra note 16, at 26; see also Nawaz, supra note 26, at 642 (who finds it “naive to think that contribution to codification can be made only in a treaty form”). Sinclair strongly favors the drafting of multilateral conventions as a method of codification, but in view of the low rate of ratification of recent conventions, he admits that “these recent developments cast a measure of doubt on the traditional assumption that the end-product of the Commission’s work should be a codification convention.” I. Sinclair, supra note 1, at 37–39. Contra Sette-Camara, supra note 11, at 500 (“experience has shown that the only way to achieve definitive results in the field of progressive development and codification is by conventions”); Reuter, Statement, [1987] 1 Y.B. Int’l L. Comm’n 96, UN Doc. A/CN.4/SER.A/1987 (“The Commission must nevertheless continue, as it has always done, to elaborate texts in the form of draft articles and to regard the provisions it formulated as binding legal rules ””).

63 I. Sinclair, supra note 1, at 93.

64 Sinclair states that “the Special Rapporteur exercises a good deal of discretion in the discharge of his mandate.” Id. at 33.

65 McCaffrey, Forty-second Session, supra note 35, at 943 n.22; McCaffrey, Waterways, supra note 35, at 42.

66 See, e.g., the problems faced by the Commission in allocating a sufficient number of meetings for a coherent discussion of state responsibility at its 41st session. Report of the International Law Commission on the work of its forty-first session, 44 UN GAOR Supp. (No. 10) at 189, para. 225, UN Doc. A/44/10 (1989) [hereinafter ILC 1989 Report].

67 UNITAR Study, supra note 16, at 20.

68 Id. at 12.

69 It has also happened that useful studies prepared by the Secretariat at a special rapporteur’s request were not distributed to the ILC members because the rapporteur did not want them to receive the Secretariat’s report before receiving his.

70 The proposal was advanced in the UNITAR Study, supra note 16, at 21. Contra I. Sinclair, supra note 1, at 12; Nawaz, supra note 26, at 640; Sette-Camara, supra note 11, at 499.

71 B. Ramcharan, supra note 8, at 49; UNITAR Study, supra note 16, at 28. Similar proposals were made by members of the Commission’s Planning Group in 1988.

72 See Report of the Working Group, para. 13, 43 UN GAOR C.6 (40th mtg.), supra note 50, at 4.

73 The piecemeal discussion of draft articles has had repercussions in the Sixth Committee. See, e.g., representative of the United Kingdom, UN Doc. A/C.6/45/SR.37, para. 22 (1990) (“if ministries for foreign affairs proceeded in the same way to draw up a draft treaty, it could be called professional negligence”); representative of Norway, UN Doc. A/C.6/45/SR.32, para. 1 (1990) (“Asking for comments on an incomplete penal code would certainly not have been approved at the national level”).

74 See UN Doc. A/C.6/43/SR.40, para. 12 (1988) (request of the Sixth Committee).

75 See UNITAR Study, supra note 16, at 20.

76 See id. at 31. The problems that emerged over the ILC’s collaboration with Harvard Law School were of a political nature and do not detract from the validity of the suggestion. B. Ramcharan, supra note 8, at 51.

77 The German representative in the Sixth Committee has stressed this point, noting that the ILC should be no different in this respect from other legislative bodies. UN Doc. A/C6/45/SR.33, paras. 77, 78, 80 (1990); see also UN Docs. A/C6/45/SR.38, para. 68 (1990) (Austria); A/C6/45/SR.39, para. 31 (1990) (Morocco).

78 Statute of the International Law Commission, supra note 37, Art. 16(e).

79 See B. Ramcharan, supra note 8, at 50.

80 2 UN GAOR C6 (193d mtg.) at 197, UN Doc. A/C6/SR.193 (1947). See also UNITAR Study, supra note 16, at 31; Stone, On the Vocation of the International Law Commission, 57 Colum. L. Rev. 116, 149 (1957). Contra Sette-Camara, supra note 11; at 501 (who considered the idea “over-ambitious and not commensurate with the Commission’s needs”).

81 B. Ramcharan, supra note 8, at 50; see also UN Doc. A/C6/45/SR.39, para. 31 (1990) (statement of Morocco).

82 On the International Law Seminar, see, e.g., Report of the International Law Commission on the work of its fortieth session, UN Doc. A/43/10, at 290, para. 590 (1988); 1990 ILC Report, supra note 34, at 294, para. 558.

83 B. Ramcharan, supra note 8, at 52.

84 Id. at 41.

85 See UNITAR Study, supra note 16, at 19, 29; I. Sinclair, supra note 1, at 13.

86 UNITAR Study, supra note 16, at 14. At recent sessions, only 6 of the 13 members from developing countries have attended on a regular basis. The other 7 missed about half of the meetings, and some were absent even more.

87 See I. Sinclair, supra note 1, at 35.

88 ILC 1989 Report, supra note 66, at 383, para. 738.

89 ILC 1990 Report, supra note 34, at 291, para. 547.

90 Id., para. 548. The report does not mention the proposal made by Australia in the Sixth Committee, that the committee work as two Drafting Committees. 44 UN GAOR C.6 (37th mtg.), supra note 31, at 18, para. 88. This suggestion had been conveyed to the Commission by its chairman. UN Doc. A/CN.4/SR.2149, at 4 (1990).

91 See I. Sinclair, supra note 1, at 35.

92 See 43 UN GAOR C.6 (40th mtg.), supra note 50, at 4, para. 11.

93 See, e.g., report of the observer for the European Committee on Legal Co-operation, UN Docs. A/CN.4/SR.2134, at 11, and A/CN.4/SR.2191, at 3 (1990).