Hostname: page-component-78c5997874-s2hrs Total loading time: 0 Render date: 2024-11-13T22:48:33.108Z Has data issue: false hasContentIssue false
  • English
  • Français

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]
Get access Rights & Permissions [Opens in a new window]

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

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

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.

7. Draft Code of Offences Against the Peace and Security of Mankind with Commentaries, in ibid., at 149; Draft Code of Crimes against the Peace and Security of Mankind with Commentaries, in International Law Commission, Yearbook of the International Law Commission, 1996, Vol. II, Part Two (New York: United Nations Publications, 1996), at 17Google Scholar.

8. Model Rules on Arbitral Procedure with a General Commentary, in International Law Commission, Yearbook of the International Law Commission, 1958, Vol. II (New York: United Nations Publications, 1958), at 83Google Scholar.

9. Draft Statute for an International Criminal Court with Commentaries, in International Law Commission, Yearbook of the International Law Commission, 1994, Vol. II, Part Two (New York: United Nations Publications, 1994), at 26Google Scholar.

10. Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal with Commentaries, in International Law Commission, Yearbook of the International Law Commission, 1950, Vol. II (New York: United Nations Publications, 1950), at para. 97Google Scholar; Guiding Principles Applicable to Unilateral Declarations of States Capable of Creating Legal Obligations, in International Law Commission, Yearbook of the International Law Commission, 2006, Vol. II, Part Two (New York: United Nations Publications, 2006), at 369Google Scholar; Draft Principles on the Allocation of Loss in the Case of Transboundary Harm Arising out of Hazardous Activities, in International Law Commission, Yearbook of the International Law Commission, 2006, Vol. II, Part Two (New York: United Nations Publications, 2006), at 59Google Scholar.

11. Draft Declaration on Rights and Duties of States with Commentaries, in International Law Commission, Yearbook of the International Law Commission, 1994 (New York: United Nations Publications, 1994), at 287Google Scholar.

12. Guide to Practice on Reservations to Treaties, in International Law Commission, Yearbook of the International Law Commission, 2011, Vol. II, Part Two (New York: United Nations Publications, 2011), at 26Google Scholar.

13. Draft Conclusions on the Identification of Customary International Law, in International Law Commission, Yearbook of the International Law Commission, 2018, Vol. II, Part Two (New York: United Nations Publications, 2018), at 122Google Scholar; Draft Conclusions on Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties, in International Law Commission, Yearbook of the International Law Commission, 2018, Vol. II, Part Two (New York: United Nations Publications, 2018), at 16Google Scholar.

14. Report by the Commission on the Ways and Means for Making the Evidence of Customary International Law More Readily Available, in International Law Commission, Yearbook of the International Law Commission, 1950, supra note 10 at 367; Report of the Commission on the Reservations to Multilateral Convention, in International Law Commission, Yearbook of the International Law Commission, 1951, Vol. II (New York: United Nations Publications, 1951), at 125Google Scholar; Report by the Commission on the Extended Participation in General Multilateral Treaties Concluded under the Auspices of the League of Nations, in International Law Commission, Yearbook of the International Law Commission, Vol. II (New York: United Nations Publications, 1963), at 35Google Scholar; Report of the Working Group on Review of the Multilateral Treaty-Making Process, in International Law Commission, Yearbook of the International Law Commission, Vol. II, Part One (New York: United Nations Publications, 1979), at 183Google Scholar; Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission (ILC), finalized by Martti KOSKENNIEMI, UN Doc. A/CN.4/L/682 (2006); Final Report of the Working Group on Obligation to Extradite or Prosecute, in International Law Commission, Yearbook of the International Law Commission, Vol. II, Part Two (New York: United Nations Publications, 2014), at para. 65Google Scholar; Final Report of the Study Group on the Most-Favoured Nation Clause, in International Law Commission, Yearbook of the International Law Commission, 2015, Vol. II, Part Two (New York: United Nations Publications, 2015)Google Scholar.

15. However, in relation to a treaty, such articles represent no more than a draft that cannot be attributed to the states which may one day become Contracting Parties to the treaty. See Giorgio GAJA, “Interpreting Articles Adopted by the International Law Commission” (2015) 85 British Yearbook of International Law 10 at 18.

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

17. See Articles Concerning the Law of the Sea with Commentaries, in International Law Commission, Yearbook of the International Law Commission, 1956, Vol. II (New York: United Nations Publications, 1956), at 265Google Scholar; Draft Articles on Diplomatic Intercourse and Immunities with Commentaries, in International Law Commission, Yearbook of the International Law Commission, 1958, Vol. II (New York: United Nations Publications, 1958), at 89Google Scholar; Draft Articles on Consular Relations with Commentaries, in International Law Commission, Yearbook of the International Law Commission, 1961, Vol. II (New York: United Nations Publications, 1961), at 92Google Scholar; Draft Articles on the Law of Treaties with Commentaries, in International Law Commission, supra note 16 at 187; Draft Articles on Special Missions with Commentaries, in International Law Commission, Yearbook of the International Law Commission, 1967, Vol. II (New York: United Nations Publications, 1967), at 347Google Scholar; Draft Articles on the Representation of States in their Relations with International Organizations with Commentaries, in International Law Commission, Yearbook of the International Law Commission, 1971, Vol. II, Part One (New York: United Nations Publications, 1971), at 284Google Scholar; Draft Articles on the Prevention and Punishment of Crimes Against Diplomatic Agents and Other Internationally Protected Persons with Commentaries, in International Law Commission, Yearbook of the International Law Commission, 1972, Vol. II (New York: United Nations Publications, 1972), at 312Google Scholar; and Draft Articles on Succession of States in Respect of Treaties with Commentaries, in International Law Commission, Yearbook of the International Law Commission, 1974, Vol. II, Part One (New York: United Nations Publications, 1974), at 174Google Scholar.

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.”

19. TOMUSCHAT, Christian, “The International Law Commission—An Outdated Institution” (2006) 49 German Yearbook of International Law 77 at 92Google Scholar.

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.

21. See Draft Articles on Nationality of Natural Persons in Relation to the Succession of States, in International Law Commission, Yearbook of the International Law Commission, 1999, Vol. II, Part Two (New York: United Nations Publications, 1999), at 23Google Scholar; Draft Articles on Responsibility of States for Internationally Wrongful Acts, in International Law Commission, Yearbook of the International Law Commission, 2001, Vol. II, Part Two (New York: United Nations Publications, 2001), at 31Google Scholar; Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, in International Law Commission, Yearbook of the International Law Commission, 2001, Vol. II, Part Two (New York: United Nations Publications, 2001), at 148Google Scholar; Draft Articles on Diplomatic Protection, in International Law Commission, Yearbook of the International Law Commission, 2006, supra note 10 at 26; Draft Articles on the Law of Transboundary Aquifers, in International Law Commission, Report of the International Law Commission on the Work of its Sixtieth Session, UN Doc. A/63/10 (2008), at 22; Draft Articles on the Effects of Armed Conflicts on Treaties, in International Law Commission, Report of the International Law Commission on the Work of its Sixty-third Session, UN Doc. A/66/10 (2011), at 108; Draft Articles on the Responsibility of International Organizations, in International Law Commission, Report of the International Law Commission on the Work of its Sixty-third Session, UN Doc. A/66/10 (2011), at para. 87; Draft Articles on the Expulsion of Aliens, in International Law Commission, Report of the International Law Commission on the Work of its Sixty-sixth Session, UN Doc. A/69/10 (2014), at para. 44; Draft Articles on the Protection of Persons in the Event of Disasters, in International Law Commission, Report of the International Law Commission on the Work of its Sixty-eighth Session, UN Doc. A/71/10 (2016), at para. 48.

22. Draft Articles on Nationality of Natural Persons in Relation to the Succession of States, in International Law Commission, Yearbook of the International Law Commission, 1999, Vol. II, Part Two (New York: United Nations Publications, 1999), at 20, para. 44Google Scholar.

23. COGAN, Jacob Katz, “The Changing Form of the International Law Commission's Work” in VIRZO, Roberto and INGRAVALLO, Ivan, eds., Evolutions in the Law of International Organizations (Leiden: Brill/Nijhoff, 2015), 275 at 279Google Scholar.

24. International Law Commission, Yearbook of the International Law Commission, 2001, Vol. II, Part Two (New York: United Nations Publications, 2001), at 25, paras. 72–3Google Scholar.

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.

38. MCRAE, Donald M., “The International Law Commission: Codification and Progressive Development after Forty Years” (1987) 25 Canadian Yearbook of International Law 355 at 357Google Scholar.

39. Ibid., at 362.

40. Ibid.

41. In 1949, in its first session, the Commission drew up a provisional list of fourteen topics selected for codification: (1) Recognition of states and governments, (2) Succession of states and governments, (3) Jurisdictional immunities of States and their property, (4) Jurisdiction with regard to crimes committed outside national territory, (5) Regime of the high seas, (6) Regime of territorial waters, (7) Nationality, including statelessness, (8) Treatment of aliens, (9) Right of asylum, (10) Law of treaties, (11) Diplomatic intercourse and immunities, (12) Consular intercourse and immunities, (13) State responsibility, and (14) Arbitral procedure. The ILC has submitted a final report on all the topics included in the 1949 list, except (1) Recognition of states and governments, (4) Jurisdictional with regard to crimes committed outside national territory, (8) Treatment of aliens, and (9) Right of asylum. See Nations, United, The Work of the International Law Commission, 8th ed. (New York: United Nations Publications, 2012), at 35–7Google Scholar.

42. CARON, David D., “The ILC Articles on State Responsibility: The Paradoxical Relationship Between Form and Authority” (2002) 96 American Journal of International Law 857 at 859CrossRefGoogle Scholar.

43. International Law Commission, Yearbook of the International Law Commission, 1998, Vol. II, Part Two (New York: United Nations Publications, 1998), at para. 553Google Scholar.

44. PARK, Ki-Gab, “How Does the UN International Law Commission Select a Topic on its Programme of Work? Evaluation and Perspectives” (2013) 58 Korean Journal of International Law 301 at 317Google Scholar.

45. Rim, supra note 28, at 127. According to Professor McRae, a former member of the ILC, “uncertainty has been expressed in the Commission over the extent to which it would be creating new regimes not based on significant state practice” in respect of the two topics that are related to the environment. See MCRAE, Donald M., “The Work of the International Law Commission, 2007–2011: Progress and Prospects” (2012) 106 American Journal of International Law 322 at 337Google Scholar.

46. International Law Commission, Report of the International Law Commission on the Work of its Sixty-third Session, supra note 21, Annex E: “Protection of the Environment in Relation to Armed Conflicts”, by Marie G. JACOBSSON, at 215, para. 33.

47. International Law Commission, Second Report on the Protection of the Environment in Relation to Armed Conflicts, by Marie G. JACOBSSON, Special Rapporteur, UN Doc. A/CN.4/685 (2015), at para. 27.

48. Rim, supra note 28 at 130.

49. CHINKIN, Christine M., “The Challenge of Soft Law: Development and Change in International Law” (1989) 38 International and Comparative Law Quarterly 850 at 861CrossRefGoogle Scholar.

50. Cogan, supra note 23 at 288.

51. Ibid.

52. United Nations, “Statement by Dr Vishnu Datt Sharma, Additional Secretary and Government Advisor, Ministry of External Affairs, India, on Agenda Item 82, at the Sixth Committee of the 73rd Session of the General Assembly” (26 October 2018), online: United Nations PaperSmart <https://papersmart.unmeetings.org/en/ga/sixth/73rd-session/statements/>.

53. United Nations, “Statement by Mr Xu Hong, Representative of China and Director-General of the Department of Treaty and Law of the Ministry of Foreign Affairs of China on Agenda Item 82, at the Sixth Committee of the 73rd Session of the General Assembly” (26 October 2018), online: United Nations PaperSmart <https://papersmart.unmeetings.org/en/ga/sixth/73rd-session/statements/>.

54. United Nations, “Statement of the United States of America on Agenda Item 82, at the Sixth Committee of the 73rd Session of the General Assembly” (31 October 2018), online: United Nations PaperSmart <https://papersmart.unmeetings.org/en/ga/sixth/73rd-session/statements/>.

55. International Law Commission, “Methods of Work” (11 January 2019), online: ILC <http://legal.un.org/ilc/methods.shtml>.

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.

57. Tomuschat, supra note 19 at 84.

58. Rim, supra note 28 at 128.

59. Tomuschat, supra note 19 at 104.

60. WOOD, Michael, “The General Assembly and the International Law Commission: What Happens to the Commission's Work and Why?” in BUFFARD, Isabelle, CRAWFORD, James, PELLET, Alain, and WITTICH, Stephan, eds., International Law Between Universalism and Fragmentation: Festschrift in Honour of Gerhard Hafner (Leiden: Martinus Nijhoff, 2008), 383Google Scholar.

61. PEIL, Michael, “Scholarly Writings as a Source of Law: A Survey of the Use of Doctrine by the International Court of Justice” (2012) 1 Cambridge Journal of International Law 136 at 152Google Scholar.

62. For a list of references made by the ICJ to the Articles on Responsibility of States for Internationally Wrongful Acts (2001), see United Nations, Materials on the Responsibility of States for Internationally Wrongful Acts, U.N.L.S. ST/LEG/SER B/25 (2012) (New York: United Nations Publications, 2012), at viiGoogle Scholar; CRAWFORD, James, “Change, Order, Change: The Course of International Law” (2013) 365 Collected Courses of the Hague Academy of International Law 9 at 108, ftn 263Google Scholar.

63. DORDESKA, Marija, “The Process of International Law Making: The Relationship Between the International Court of Justice and the International Law Commission” (2015) 15 International and Comparative Law Review 7 at 14CrossRefGoogle Scholar.

64. Sean MURPHY, D., “Deconstructing Fragmentation: Koskenniemi's 2006 ILC Project” (2013) 27 Temple International and Comparative Law Journal 293 at 304Google Scholar.

65. Ibid., at 306.

66. Rim, supra note 28 at 130–1.

67. International Law Commission, Report of the International Law Commission on the Work of its Sixty-third session, supra note 21 at 34, para. 2.

68. International Law Commission, First Report on Formation and Evidence of Customary International Law, by Michael WOOD, Special Rapporteur, UN Doc. A/CN.4/663 (2013), at para. 14.

69. International Law Commission, Report of the International Law Commission on the Work of its Sixty-fifth Session, UN Doc. A/68/10 (2013), at 95, para. 73.

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

71. International Law Commission, First Report on Subsequent Agreement and Subsequent Practice in Relation to Treaty Interpretation, by Georg NOLTE, Special Rapporteur, UN Doc. A/CN.4/660 (2013), at para. 6.

72. International Law Commission, supra note 2 at 12, para. 49.

73. Murphy, supra note 64 at 306.

74. Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, supra note 14 at 255.

75. Murphy, supra note 64 at 306.

76. DAUGRIDAS, Kristina, “The International Law Commission Reinvents Itself?” (2014) 108 AJIL Unbound 79 at 80Google Scholar.

77. International Law Commission, supra note 30 at 35, paras. 3–4.

78. MURPHY, Sean D., “Codification, Progressive Development, or Scholarly Analysis? The Art of Packaging the ILC's Work Product” in RAGAZZI, Maurizio, ed., Responsibility of International Organizations: Essays in Memory of Sir Ian Brownlie (Leiden: Martinus Nijhoff, 2013), 38Google Scholar.

79. FRANCK, Thomas M. and ELBARADEI, Mohamed, “The Codification and Progressive Development of International Law: A UNITAR Study of the Role and Use of the International Law Commission” (1982) 76 American Journal of International Law 630 at 638CrossRefGoogle Scholar.