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The International Law Commission: Codification and Progressive Development after Forty Years

Published online by Cambridge University Press:  09 March 2016

D. M. McRae
D. M. McRae*
Affiliation:
Faculty of Law, Common Law Section, University of Ottawa
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Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 25 , 1988 , pp. 355 - 368
Copyright
Copyright © The Canadian Council on International Law / Conseil Canadien de Droit International, representing the Board of Editors, Canadian Yearbook of International Law / Comité de Rédaction, Annuaire Canadien de Droit International 1988

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References

1 Members of the Commission were elected the following year, in 1948, and the Commission began its first session in 1949: see Briggs, , The International Law Commission, 3–21 (1965).Google Scholar

2 Marcel Cadieux, who subsequently became Under-Secretary of State for External Affairs and Canadian Ambassador to the United States, was at the time Legal Adviser to the Department of External Affairs.

3 J. Alan Beesley, a former Legal Adviser to the Department of External Affairs, Canadian Ambassador to the Third United Nations Conference on the Law of the Sea, and Chairman of the Drafting Committee at the Conference, was at the time Canadian Ambassador to the United Nations in Geneva.

4 In 1966, three years after inauguration of the Yearbook, A. E. Gotlieb reviewed the work of the Commission at that time : “The International Law Commission,” 3 Canadian Yearbook of International Law 64 ( 1966). For comprehensive analyses of the Commission's work, see Briggs, op. cit. supra note 1 ; Ramcharan, , The International Law Commission (1977)Google Scholar; and most recently Sinclair, , The International Law Commission (1987),Google Scholar which is reviewed elsewhere in this Yearbook.

5 Initially composed of 15 members, the Commission was increased to 21 in 1956 and to 25 in 1961 : see Briggs, op. cit. supra, note 1, at 33. In 1981 the Commission’s size was further increased to 34.

6 The result of the 1986 elections to the Commission is that for the first time one of the permanent members of the Security Council (United Kingdom) does not have a national elected to the Commission.

7 These topics were law of treaties, special missions, state responsibility, succession of states and governments, and relations between states and intergovernmental organizations. Not all topics were dealt with in each session.

8 These topics are jurisdictional immunities of states and their property, status of the diplomatic courier and of the diplomatic bag unaccompanied by courier, crimes against the peace and security of mankind, law of the non-navigational uses of international watercourses, international liability for injurious consequences arising out of acts not prohibited by international law, state responsibility, and relations between states and international organizations (second part). The Commission plans to complete second reading of the draft articles of the first two of these topics and to complete first reading of draft articles on the second two topics by the end of the current quinquennium; Report of the International Law Commission on the work of its 39th Session, A/42/10, para. 232.

9 See Sinclair, op. cit supra note 4, at 72 : “There is an occasional tendency to portray the nineteen sixties as the ‘golden era’ of the Commission. …“ For a glowing assessment of the Commission’s work at that time see Lee, “The International Law Commission Re-Examined,” 59 Am. J. Int’l L. 545–67 (1965). For an earlier, more detailed assessment of the Commission's work see Rosenne, “The International Law Commission, 1949-59,“ 36 Brit. Ybk. Int’l L. 104–73 (1960).

10 For a discussion of one of these codification conferences see Philippe Kirsch, , “La Conférence de 1983 sur la Succession d’États et le Processus de Codifica-tion: Accident de parcours ou reflet d’une tendance,” Proceedings of the 1983 Annual Conference of the Canadian Council on International Law 193 (1984).Google Scholar There have been 5 conventions concluded since 1969 on the basis of reports of the Commission: Convention on Special Missions 1970, Convention on the Representation of States in their Relations with International Organizations of a Universal Character 1975, Convention on Succession of States in Respect of Treaties 1978, Convention on Succession of States in Respect of Property, Archives and Debts 1983, and Convention on the Law of Treaties between States and International Organizations or between International Organizations, 1986. All except the last are in force; none has attracted a significant number of ratifications.

11 An early critic was Julius Stone, who stated that the Commission “is not destined to solve or transform the basic problems of international law and society in pursuance of its present mandate”; see “On the Vocation of the International Law Commission,” 57 Columbia L. Rev. 16 at 49 (1957).

12 See Rosenne, op. cit. supra note 9, at 154-61 ; Gotlieb, op. cit. supra note 4, at 79.

13 See interventions by the representative of Australia in the Sixth Committee at the 30th and 31st Sessions of the General Assembly: A/C.6/SR.1541 (XXX) para. 16; A/31/PV/9, para. 191.

14 Baradei, Mohamed El, Franck, Thomas M., and Trachtenberg, Robert, The International Law Commission: The Need for a New Direction, UNITAR Policy and Efficacy Studies No. 1 (1981).Google Scholar

15 The authors consider a variety of proposals for the reform of the Commission, including the creation of an international legal research centre which could co-ordinate research and assist the Commission on specific topics; supra note «4) at 30–32.

16 See Szasz, P.C., “Reforming the Multilateral Treaty-Making Process: An Opportunity Missed,” in Festschrift for Shabtai Rosenne (forthcoming) ms pp. 4, 29.Google Scholar

17 Statement of November 9, 1983. In lectures prepared before his term on the Commission came to an end, the United Kingdom member of the Commission, Sir Ian Sinclair, has provided a frank assessment of the Commission’s work; Sinclair, op. cit. supra note 4, including the drafting committee problem; ibid., 35–37.

18 G.A. Res. 41/81, December 3, 1986.

19 Report of the Commission, op. cit. supra note 8, paras. 235–42.

20 E.g., labour, health; see El Baradei et al., op. cit. supra note 14, at 2.

21 See Lee, op. cit. supra note 9, at 556–58.

22 See Kirsch, and McRae, , “Law Making through International Organizations,” in International Law: Critical Choices for Canada, 1985–2000, 5–12 (1986).Google Scholar

23 Jennings, , “Recent Developments in the International Law Commission: Its Relation to the Sources of International Law,” 13 Int’l Comp. L.Q. 385–97 (1964).CrossRefGoogle Scholar For a reminder of the implications of such an expansion for the sources of international law, see Weil, , “Towards Relative Normativity in International Law,” 77 Am. J. Int’l L. 413 (1983).CrossRefGoogle Scholar

24 The approach to reservations to treaties embodied in the Commission’s draft articles on the law of treaties, and which are now found in Articles 19-23 of the Vienna Convention on the Law of Treaties, reflects this.

25 Rosenne, op. cit. supra, note 9, at 155–57.

26 However, one of the most difficult issues in the law of the sea negotiations of the 1950’s was the breadth of the territorial sea, a problem that states were unable to resolve at that time.

27 For a description of the UNCLOS negotiating and consensus processes see Buzan, “Negotiating by Consensus: Developments in Technique at the United Nations Conference on the Law of the Sea,“ 75 Am. J. Int’l L. 324–48 (1981). For a description of the process before the Drafting Committee at the Third United Nations Conference on the Law of the Sea see Nelson, , “The Drafting Committee of the Third United Nations Conference on the Law of the Sea: The Implications of Multilingual Texts,” 57 Brit. Ybk Int’l L. 169 (1987).Google Scholar

28 Lee, op. cit. supra note 9, at 550.

29 Rosenne refers to “the close integration of the technical work of studying and drafting, which is the special function of the Commission, with the application of political controls, which is the special function of the Sixth Committee,” op. cit. supra note 9, at 161.

30 op. cit. supra note 14, at 22.

31 Jennings, op. cit. supra note 23, at 386.

32 The topic that might have been expected to be the basis of a traditional codification is that of state responsibility, but for reasons relating to changes in rapporteurs and to difficulties with the elaboration of the original conceptual framework, progress on this topic by the Commission has come to a virtual standstill. For a discussion of these difficulties, see Sinclair, op. cit. supra note 4, at 82–87 and 104–7.

33 See Sinclair, ibid., 37–38: “The Commission has been criticized for its rigidity in constantly assuming that the end-product of its work should be a codification convention . .. There is much force in these criticisms.”

34 States were requested to make their comments and observations by January 1, 1988.

35 Arguably, acceptance of a theory of restrictive sovereign immunity is more likely to develop in state practice from economic imperatives rather than from any imposition through a multilateral convention.

36 The Commission has used the model of the draft code in the past with the Draft Code on Arbitral Procedure. The problem is that such a result is not generally perceived as a successful outcome.

37 Report of the Commission op. cit. supra note 8, para. 248.

38 This was the subject of comment by the delegation of Sweden in the Sixth Committee debate at the 41st Session of the General Assembly.

39 op. cit. supra, note 29.

40 G.A. Res. 41/81, December 3, 1986, drew specific attention to the need to consider methods of work.

41 Gf. Sinclair, op. cit supra note 4, at viii, “the Commission is capable of reasserting its pre-eminent role … [in the codification and development of international law] if, with the necessary support of the General Assembly, it is prepared to review and reform some of its working methods.“

42 See, e.g., Report of the Commission, op. cit supra note 8, paras. 138–39.

43 Sinclair points out correctly that it is wrong to equate progressive and reactionary views on the Commission with a developing or Third World and de-veloped world split as the UNITAR study tended to do; op. cit. supra note 4, at 114.

44 A similar problem confronts the Commission on the topic of the law relating to the non-navigational uses of international watercourses, which involves non-traditional concepts such as “shared national resources,” “equitable utilization,” and the “duty to co-operate.” That topic is further complicated by the difference in interest between upstream and downstream states, a difference that manifests itself in the debates of both the Commission and the Sixth Committee.