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Reflections on the Role of the International Law Commission in Consideration of the Final Form of Its Work

Published online by Cambridge University Press:  17 December 2019

Yejoon RIM
Yejoon RIM*
Affiliation:
Korea Institute for National Unification, Republic of [email protected]
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Abstract

This paper examines the changing trend in the final form of International Law Commission [ILC] outcomes, and implications vis-à-vis the role of the ILC in the development of international law. To this end, the paper considers changes in the form of ILC outcomes and recommendations, the reasons for such changes, and finally, implications for the development of international law. It argues that, in opting for various forms appropriate for dealing with a wider scope of topics, the ILC is providing for its continuing role in the development of international law by ensuring the flexibility and efficacy of its deliberations.

Type
Notes and Comments
Information
Asian Journal of International Law , Volume 10 , Issue 1 , January 2020 , pp. 23 - 37
Copyright
Copyright © Asian Journal of International Law, 2019

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Footnotes

*

Research Fellow, Korea Institute for National Unification. PhD in International Law (Graduate Institute of International and Development Studies, Geneva), Attorney at Law (New York). This paper is based on the author's paper originally presented at the conference “Commemorating the 70th Anniversary of the UN ILC: From the Perspectives of the Asian-Pacific Regional Group” organized by the Asian Society of International Law, Korea Chapter, held on 8 November 2018, Seoul. The material has been amended and updated since that presentation.

References

1. International Law Commission, Fifth Report on Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties, by Georg NOLTE, Special Rapporteur, UN Doc. A/CN.4/715 (2018), at para. 148.

2. International Law Commission, Report of the International Law Commission on the Work of its Seventieth Session, UN Doc. A/73/10 (2018), at 12, para. 49.

3. Ibid., at 118, para. 63.

4. Establishment of an International Law Commission, 21 November 1947, GA Res. 174 (II), UN Doc. A/504 (1947); Article 1(1) of the Statute of the International Law Commission, 21 November 1947, GA Res. 174 (II), UN Doc. A/504 (1947), amended by GA Res. 485 (V) of 12 December 1950, GA Res. 984 (X) of 3 December 1955, GA Res. 985 (X) of 3 December 1955, and GA Res. 36/39 of 18 November 1981.

5. This count is based on the list of agendas provided by the ILC website, and a count of topics for which final outcomes have been submitted: International Law Commission, “Periods During Which Topics Were on the Agenda of the International Law Commission” (May 2019), online: ILC <http://legal.un.org/ilc/guide/annex1.shtml>. Although fifty-seven topics have been listed on the agenda of the ILC (including two listed in 2019: Sea-level Rise and General Principles of Law), the number includes topics that have been incorporated into others or subdivided, that do not have any final outcome, or that produced several outcomes under the one agenda.

6. Draft Convention on the Elimination of Future Statelessness and Draft Convention on the Reduction of Future Statelessness, in International Law Commission, Yearbook of the International Law Commission, 1954, Vol. II (New York: United Nations Publications, 1954), at 143Google Scholar.

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16. International Law Commission, Yearbook of the International Law Commission, 1966, Vol. II (New York: United Nations Publications, 1966), at 177, para. 36Google Scholar.

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18. According to art. 23 of the Statute of the International Law Commission, supra note 4, the ILC may recommend to the General Assembly: “(a) To take no action, the report having already been published; (b) To take note of or adopt the report by resolution; (c) To recommend the draft to Members with a view to the conclusion of a convention; and (d) To convoke a conference to conclude a convention.”

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20. The 2004 United Nations Convention on Jurisdictional Immunities of States and Their Property, 2 December 2004, GA Res. 59/38, UN Doc. A/59/49 (not yet entered into force) is based on the Draft Articles on Jurisdictional Immunities of States and Their Property, in International Law Commission, Yearbook of the International Law Commission, 1991, Vol. II, Part Two (New York: United Nations Publications, 1991), at 13Google Scholar.

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25. Responsibility of States for Internationally Wrongful Acts, GA Res. 56/83, UN Doc. A/56/10 (2001); Responsibility of States for Internationally Wrongful Acts, GA Res. 59/35, UN Doc. A/59/505 (2004); Responsibility of States for Internationally Wrongful Acts, GA Res. 62/61, UN Doc. A/62/446 (2007); Responsibility of States for Internationally Wrongful Acts, GA Res. 65/19, UN Doc. A/65/463 (2010); Responsibility of States for Internationally Wrongful Acts, GA Res. 68/104, UN Doc. A/68/460 (2013); Responsibility of States for Internationally Wrongful Acts, GA Res. 71/133, UN Doc. A/71/505 (2016).

26. The topic for the ILC can be proposed by the General Assembly, members of the United Nations, the principal organs of the United Nations other than the General Assembly, and specialized agencies. However, it can also be surveyed and recommended by the Commission itself: Statute of the International Law Commission, supra note 4 at arts. 16–18.

27. Draft Declaration on the Rights and Duties of States, 21 November 1947, GA Res. 178 (II), UN Doc. A/508 (1947) (emphasis added).

28. Regarding the process for the determination of the final form of the ILC's work, see RIM, Yejoon, “A Study on the Final Form of the International Law Commission's Work” (2018) 50 Korea International Law Review 103 at 115–20Google Scholar.

29. On the topic of Sea-level Rise in International Law, the Commission decided to establish an open-ended Study Group on the topic, whereas for the topic of General Principles of Law, the Special Rapporteur suggested that it take the form of conclusions accompanied by commentaries, along with other topics on the subject of sources of law: International Law Commission, First Report on General Principles of Law, by Marcelo VÁZQUEZ-BERMÚDEZ, Special Rapporteur, UN Doc. A/CN.4/732 (2019), at para. 34.

30. International Law Commission, Report of the International Law Commission on the Work of its Sixty-third session, UN Doc. A/66/10/Add.1 (2011) at 35, para. 4.

31. International Law Commission, Report of the International Law Commission on the Work of its Fifty-eighth Session, UN Doc. A/61/10 (2006) at 64, para. 11, and at 110, para. 67.

32. Ibid., at 105, para. 63.

33. International Law Commission, supra note 30 at 18, para. 72.

34. International Law Commission, supra note 31 at 366, para. 170.

35. International Law Commission, supra note 3 at 118, para. 63.

36. In the case of the Draft Conclusions on Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties, the Commission recommended that “the General Assembly: (a) take note in a resolution of the draft conclusions on subsequent agreements and subsequent practice in relation to the interpretation of treaties, annex the draft conclusions to the resolution, and ensure their widest dissemination; and (b) commend the draft conclusions, together with the commentaries thereto, to the attention of States and all who may be called upon to interpret treaties.” International Law Commission, supra note 2 at 12, para. 49.

37. Cogan, supra note 23 at 283.

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56. International Law Commission, supra note 2 at 158, para. 77. For instance, the Commission has been concerned about the topic of the Protection of Atmosphere in that it is interconnected with the politically controversial issue of climate change. McRae, supra note 45 at 337.

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