International Law Commission

International Law Commission

Discussion
Ask a question about 'International Law Commission'
Start a new discussion about 'International Law Commission'
Answer questions from other users
Full Discussion Forum
 
Encyclopedia
The International Law Commission was established by the United Nations General Assembly
United Nations General Assembly
For two articles dealing with membership in the General Assembly, see:* General Assembly members* General Assembly observersThe United Nations General Assembly is one of the five principal organs of the United Nations and the only one in which all member nations have equal representation...

 in 1948 for the "promotion of the progressive development of international law and its codification."

It holds an annual session at the United Nations Office at Geneva
United Nations Office at Geneva
The United Nations Office at Geneva is the second-largest of the four major office sites of the United Nations...

.

Origin


Several attempts have been made in the effort to codify international law. The work which led to the International Law Commission was begun in the Resolution of the Assembly of the League of Nations
League of Nations
The League of Nations was an intergovernmental organization founded as a result of the Paris Peace Conference that ended the First World War. It was the first permanent international organization whose principal mission was to maintain world peace...

 of 22 September 1924, which established the Committee of Experts for the Progressive Codification of International Law, consisting of 17 members, for the purpose of making recommendations as to which issues required to be addressed in international law and the steps desirable to that end. The committee's work led to the League of Nations Codification Conference of 1930
League of Nations Codification Conference, 1930
The League of Nations Codification Conference was a conference that was held in the Hague from March 13 to April 12, 1930, for the purpose of formulating accepted rules in international law to subjects that until then were not addressed thoroughly...

, which dealt mainly with the issues of nationality laws, territorial waters and state responsibility to damage caused to foreign nationals.

The United Nations adopted many concepts of the League's resolution in Article 13, Paragraph 1 of the Charter of the United Nations, which stated:

"1. The General Assembly shall initiate studies and make recommendations for the purpose of: a. ... encouraging the progressive development of international law and its codification."

On December 11, 1946, The General Assembly passed Resolution 94, which called to establish a committee of legal experts to make recommendations to the UN Secretary-General on the ways the General Assembly could encourage the progressive development of international law and its codification. The committee of experts consisted of 17 members and convened from May 12 to June 17, 1947. It recommended to establish a permanent UN commission to promote these objectives.

On November 21, 1947, the UN General Assembly passed Resolution 174, which provided for the creation of an "International Law Commission" in order to fulfill the obligations of the Charter. To the resolution was attached the statute of the Commission, which defined its purposes as being:
  • Promoting the codification of international law.
  • Solving problems within both public and private international law.

Working procedures for the Commission were elaborated in articles 16-26.

The Commission consists of 34 members elected by the General Assembly. Members act as individuals and not as officials representing their respective states.

Working procedures of the ILC


The work of the Commission is regulated by its statute, which was initially approved by the General Assembly on November 21, 1947 and amended on December 12, 1950, December 3, 1955 and November 18, 1981.

It consists of 34 members (originally there were 15) who all must be experts on international law, elected to the position by the General Assembly from a list of candidates nominated by governments of member states in the UN.

One venue of action for the commission in the codification of principles of international law is when requested to do so by the General Assembly. In that case, the commission appoints one of its members as Special Rapporteur on that subject and prepares a plan of work regarding the issue in question. Governments are requested to submit to the commission their written opinions on the issue in question, as specified in the plan of work. The rapporteur then writes a report of his or her recommendations on the subject under discussion and the report must be approved by the rest of the commission as well as by the UN Secretary-General before it becomes an official commission document. The commission then reconsiders the report after receiving additional written opinions from governments, and the report is being submitted to the General Assembly for approval.

Another venue of action is when the commission is requested either by a government, an inter-governmental organization or a UN agency to draft proposals for international conventions on various issues. In that case, the commission formulates a plan of work and receives written opinions from governments on the issue in question. The final draft is also submitted to the General Assembly.

The commission also works independently of external requests by its regular work of considering questions of international law. Also in these cases, all recommendations for actions are submitted to the General Assembly for final approval. The commission's independent deliberations usually take place in its annual sessions.

Members of the Commission


Article 2, paragraph 1, of the Statute provides that the members of the Commission “shall be persons of recognized competence in international law”. The members of the Commission are persons who possess recognized competence and qualifications in both doctrinal and practical aspects of international law. Members are drawn from the various segments of the international legal community, such as academia, the diplomatic corps, government ministries and international organizations. [2] Since the members are often persons working in the academic and diplomatic fields with outside professional responsibilities, the Commission is able to proceed with its work not in an ivory tower but in close touch with the realities of international life. No two members of the Commission may be nationals of the same State (article 2, paragraph 2). [6] In case of dual nationality, a person is deemed to be a national of the State in which he or she ordinarily exercises civil and political rights (article 2, paragraph 3).

Annual sessions of the commission


The commission's main function since its establishment has been its annual sessions, starting from 1949. At first, the proceedings of these sessions were kept in a mimeograph form and were not available to the public, but on December 3, 1955, the General Assembly passed resolution 987, which required the publication of a summary of the proceedings of these meetings in a special yearbook designated for this purpose, and this in order to make the information available to both public and governments. For the 1st session, proceedings have been published in one volume, but starting from the 2nd session, proceedings have been published in two volumes - the first containing summary of the deliberations and the second containing documents adopted at that session.

At the beginning of each session, the commission elects one of its members to serve as its chairman until the next session.

1st session, 1949


The agenda for the first session was prepared by the General Assembly throughout 1947-1948. In resolution 177 (November 21, 1947), the Assembly charged the commission with formulating principles based on the judgement of the Nurnberg Tribunal and drafting a new code of offenses against the peace of mankind. Resolution 178 (of the same day) charged the commission with preparing a document on the rights and duties of states in international law. Resolution 260 (December 9, 1948) instructed the commission to consider the establishing of a criminal chamber within the International Court of Justice
International Court of Justice
The International Court of Justice is the primary judicial organ of the United Nations. It is based in the Peace Palace in The Hague, Netherlands...

, for prosecuting political leaders guilty of crimes against international law.

Election of the 15 commission members by the General Assembly took place on November 3, 1948.

The 1st session of the commission was held in Lake Success
Lake Success, New York
Lake Success is a village in Nassau County, New York in the United States. The population was 2,934 at the 2010 census.Lake Success is in the Town of North Hempstead on northwest Long Island. Lake Success was the temporary home of the United Nations from 1946 to 1951, occupying the headquarters of...

 from April 12 to June 9, 1949. The agenda for the session consisted of 6 items:
  • Making a general survey of topics of international law that require codification into treaties and conventions.
  • The rights and duties of states.
  • The Nuremberg Principles
    Nuremberg Principles
    The Nuremberg principles were a set of guidelines for determining what constitutes a war crime. The document was created by the International Law Commission of the United Nations to codify the legal principles underlying the Nuremberg Trials of Nazi party members following World War II.- Principle...

     and the definition of crimes against the peace of mankind.
  • Possibility of establishing a judicial body to prosecute leaders guilty of genocide.
  • Finding ways to make the rules and documents of international law more available to the public and scholars.
  • Cooperation by the ILC with other UN agencies.


At the very first meeting, US commission member Manley O. Hudson
Manley Ottmer Hudson
Manley Ottmer Hudson was a U.S. lawyer, specializing in public international law. He was a judge at the Permanent Court of International Justice, a member of the International Law Commission, and a mediator in international conflicts. The American Society of International Law named a medal after...

 was elected chairman of the commission, while the Soviet member Vladimir Koretsky was elected first vice-chairman and Indian member Benegal Rau
Benegal Rama Rau
Sir Benegal Rama Rau CIE was the fourth Governor of the Reserve Bank of India from 1 July 1949 to 14 January 1957. He was educated at Presidency College, Madras, and at Kings College, Cambridge. He was knighted in 1936. He was a member of the Indian Civil Service...

 was elected second chairman.

During that session, disagreement arose between the members as to whether the commission was entitled to include a topic on its agenda without prior consent of the General Assembly. On this issue, the commission decided that it was competent to do so, by a vote of 10 to 3.

Regarding the range of issues to be included in the agenda for codification of international law, the commission decided to start working on a limited number of subjects at first. For that reason, it was decided to exclude at the time the issue of laws of war
Laws of war
The law of war is a body of law concerning acceptable justifications to engage in war and the limits to acceptable wartime conduct...

 from the commission's discussions. Highest priority was given to the topics of law of treaties, arbitration
Arbitration
Arbitration, a form of alternative dispute resolution , is a legal technique for the resolution of disputes outside the courts, where the parties to a dispute refer it to one or more persons , by whose decision they agree to be bound...

 and regime of the sea, and rapporteurs were elected accordingly.

Another topic under discussion was the declaration on the rights and duties of states. It was decided to exclude the issue of right of asylum
Right of asylum
Right of asylum is an ancient juridical notion, under which a person persecuted for political opinions or religious beliefs in his or her own country may be protected by another sovereign authority, a foreign country, or church sanctuaries...

 from the proposed draft, and to discuss the matter further at the 2nd session.

Other issues postponed until the 2nd session were:
  • The formulation of the Nuremberg Principles and the list of offenses against the peace of mankind.
  • The issue of universal criminal jurisdiction.
  • Making texts of international law more available.
  • Cooperation with governments and UN agencies.


The commission approved a draft declaration on the rights and duties of states, which was the main legal document adopted at that session.

The commission also decided about the time and place of the 2nd session. It was decided to hold it in Geneva, starting from May 1950, for a maximum period of 10 weeks.

2nd session, 1950


The 2nd session was held in Geneva
Geneva
Geneva In the national languages of Switzerland the city is known as Genf , Ginevra and Genevra is the second-most-populous city in Switzerland and is the most populous city of Romandie, the French-speaking part of Switzerland...

 from June 5 to July 29, 1950. The agenda and the final resolutions of the session were as follows:
  • Original Item: Report of the 1st session and the draft declaration on the rights and duties of states, both of which were now approved by the General Assembly - Decision: the commission took note of that without taking further action.
  • Original Item: The General Assembly recommendation to give priority to the issue of territorial waters - Decision: the commission accepted the recommendation.
  • Original Item: Formulation of the Nuremberg Principles and the draft code of crimes against the peace and security of mankind - Decision: the commission formulated a set of seven principles to be referred to as "Nuremberg Principles".
  • Original Item: Establishment of an international court to try political leaders guilty of genocide - Decision: the commission passed resolutions to the effect that the creation of such a court was desirable and possible. However, the creation of such a court was postponed until further discussions.
  • Original Item: Law of treaties - Decision: the commission postponed decisions until further study.
  • Original Item: Arbitral procedure between states - Decision: the commission was unable to reach agreement on compulsory arbitration procedures, and the issue was postponed until further considerations.
  • Original Item: Regime of the high seas - Decision: the commission determined that every ship on the high seas must have only one nationality flag for identification purposes. However, it was unable to agree on the rest of the issues relating to the regime of the high seas.
  • Original Item: Ways of making texts of international law more available - Decision: the commission recommended that wide distribution be made of UN publications on international law and that the UN begin publications of documentary series on international tribunals and national laws and constitutions of various states. In addition, the commission recommended to the General Assembly to formulate an international convention to regulate the exchange of legal publications between governments.
  • Original Item: Right of asylum - Decision: the commission decided to postpone any deliberations on the subject, since the issue was under discussion by the International Court of Justice.
  • Original Item: Cooperation of the commission with other UN agencies, governments and other national and international organizations.
  • Original Item: Date and place of the 3rd session - Decision: the commission decided it shall be held in Geneva for a maximum period of 12 weeks starting from May 1951.


The conduct of the 2nd session was influenced by the East-West rift resulting from the Cold War
Cold War
The Cold War was the continuing state from roughly 1946 to 1991 of political conflict, military tension, proxy wars, and economic competition between the Communist World—primarily the Soviet Union and its satellite states and allies—and the powers of the Western world, primarily the United States...

. Already at the first meeting of that session, the Soviet member Koretsky protested that the People's Republic of China
People's Republic of China
China , officially the People's Republic of China , is the most populous country in the world, with over 1.3 billion citizens. Located in East Asia, the country covers approximately 9.6 million square kilometres...

 was not represented on the commission, claiming it represented the Chinese people and not the Republic of China
Republic of China
The Republic of China , commonly known as Taiwan , is a unitary sovereign state located in East Asia. Originally based in mainland China, the Republic of China currently governs the island of Taiwan , which forms over 99% of its current territory, as well as Penghu, Kinmen, Matsu and other minor...

, now ruling in Taiwan
Taiwan
Taiwan , also known, especially in the past, as Formosa , is the largest island of the same-named island group of East Asia in the western Pacific Ocean and located off the southeastern coast of mainland China. The island forms over 99% of the current territory of the Republic of China following...

 only. He demanded the Chinese member of the commission be replaced by a member from mainland China. Commission chairman Hudson opposed the Soviet demand, claiming that each member represented his own legal views rather than any government position. The commission accepted Hudson's position by a vote of 10 to 1, and Koretsky in protest left the session without attending any further meetings. A letter of protest by the government of the People's Republic of China against the representation of Taiwan at the commission was presented to the commission on June 8, but no action was taken in that regard.

3rd session, 1951


The 3rd session was held in Geneva from May 16 to July 27, 1951. The agenda of the session was as follows:
  • Item: General Assembly recommendations for revisions of the commission's statute - Decision: the commission made a partial report on the matter.
  • Item: The draft code of offenses against the peace of mankind - Decision: the commission formulated a draft.
  • Item: Duties of states in the event of the outbreak of hostilities - Decision: the commission decided to proceed with a definition of aggression in general terms.
  • Item: Law of treaties - Decision: the commission made a series of recommendations regarding the acceptance of reservations to multilateral treaties.
  • Item: Arbitral procedure.
  • Item: Regime of the high seas - Decision: the issue was postponed until further study.
  • Item: Date and place of the 4th session - Decision: the commission decided to hold the next session in Geneva for a period of ten weeks, starting from around June 1.
  • Item: Draft international convention or conventions for the elimination of statelessness - Decision: the issue was postponed until further study.
  • Item: Cooperation by the commission with other bodies - Decision: no definite decision was made.
  • Item: Development of a 20-year program for achieving peace through the United Nations - Decision: no definite decision was made.
  • Item: General Assembly comments on the report of the 2nd session.


The conduct of the session was influenced by other international events, as the Syrian representative Faris El-Khouri
Faris El-Khouri
Faris El-Khouri was a Syrian legal expert and politician.Was born to a Syrian-Christian family.Started his political career in 1914 as member of the first parliament established in the Ottoman Empire by the Young Turks...

 was absent from the early meetings due to UN deliberations of Syrian complaints against Israel
Israel
The State of Israel is a parliamentary republic located in the Middle East, along the eastern shore of the Mediterranean Sea...

.

4th session, 1952


The 4th session was held in Geneva from June 4 to August 8, 1952.

Much of the session was dedicated to the issue of arbitral procedure, on which the commission adopted a preliminary draft, consisting of 32 articles.

5th session, 1953


The 5th session was held in Geneva from June 1 to August 14, 1953.

As was done at the opening meeting of the 2nd session, also at this session, the Soviet representative Feodor I. Kozhevnikov
Feodor I. Kozhevnikov
Feodor Ivanovich Kozhevnikov was a Soviet legal expert.He wrote extensively about international law aspects in Russian history, and his writing supported Russian nationalist interpretation rather than Marxist-Leninist ideas...

 demanded to dismiss the representative of Taiwan and appoint a representative of the People's Republic of China in his place. The motion was denied this time as well, but the Soviet member did not walk out on the session as was done in 1950.

The commission began work on drafting a convention to reduce the problem of statelessness.

6th session, 1954


The 6th session was held in Paris
Paris
Paris is the capital and largest city in France, situated on the river Seine, in northern France, at the heart of the Île-de-France region...

 from June 3 to July 28, 1954.

At the opening of the session, the chairman of UNESCO
UNESCO
The United Nations Educational, Scientific and Cultural Organization is a specialized agency of the United Nations...

 expressed greeting to the commission for holding a session at the seat of the organization.

The commission formulated a draft convention for the reduction of statelessness and a draft code of crimes against the peace of mankind.

7th session, 1955


The 7th session was held in Geneva from May 2 to July 8, 1955.

The commission adopted Provisional articles concerning the regime of the high seas. It also decided to request the UN Secretary General to start regular publication of the commission's sessions in order to make them available for the public. This decision led to General Assembly resolution 987, which paved the way to orderly publication of the commission's yearbook.

17th session, 1965


The 17th session was held in two parts: in Geneva from May 3 to July 9, 1965 and in Monaco
Monaco
Monaco , officially the Principality of Monaco , is a sovereign city state on the French Riviera. It is bordered on three sides by its neighbour, France, and its centre is about from Italy. Its area is with a population of 35,986 as of 2011 and is the most densely populated country in the...

 from January 3 to 28, 1966.

50th session, 1998


The 50th session was held in two parts: in Geneva from April 27 to June 12 and in New York
New York
New York is a state in the Northeastern region of the United States. It is the nation's third most populous state. New York is bordered by New Jersey and Pennsylvania to the south, and by Connecticut, Massachusetts and Vermont to the east...

 from July 27 to August 14, 1998.

52nd session, 2000


The 52nd session was held in Geneva in two parts from May 1 to June 9 and from July 10 to August 18, 2000.

53rd session, 2001


The 53rd session was held in Geneva in two parts from April 23 to June 1 and from July 2 to August 10, 2001.

54th session, 2002


The 54th session was held in Geneva in two parts from April 29 to June 7 and from July 22 to August 16, 2002.

55th session, 2003


The 55th session was held in Geneva in two parts from May 5 to June 6 and from July 7 to August 8, 2003.

56th session, 2004


The 56th session was held in Geneva in two parts from May 3 to June 4 and from July 5 to August 6, 2004.

57th session, 2005


The 57th session was held in Geneva in two parts from May 2 to June 3 and from July 11 to August 5, 2005.

58th session, 2006


The 58th session was held in Geneva in two parts from May 1 to June 9 and from July 3 to August 11, 2006.

59th session, 2007


The 59th session was held in Geneva in two parts from May 7 to June 8 and from July 9 to August 10, 2007.

60th session, 2008


The 60th session was held in Geneva in two parts from May 5 to June 6 and from July 7 to August 8, 2008.

61st session, 2009


The 61st session was held in Geneva in two parts from May 4 to June 5 and from July 6 to August 7, 2009.

62nd session, 2010


The 62nd session was held in Geneva in two parts from May 3 to June 4 and from July 5 to August 6, 2010.

63rd session, 2011


The 63rd session was held in Geneva in two parts from April 26 to June 3 and from July 4 to August 12, 2011.

64th session, 2012


The 64th session will be held in Geneva in two parts from May 7 to June 1 and from July 2 to August 3, 2012.

Achievements


The International Law Commission's work has led to the creation of a number of treaties and other works of international law that are key to the present international legal order (see generally http://untreaty.un.org/ilc/texts/texts.htm), for example:
  • The Vienna Convention on the Law of Treaties
    Vienna Convention on the Law of Treaties
    The Vienna Convention on the Law of Treaties is a treaty concerning the international law on treaties between states. It was adopted on 22 May 1969 and opened for signature on 23 May 1969. The Convention entered into force on 27 January 1980. The VCLT has been ratified by 111 states as of November...

  • The Vienna Convention on Succession of States in respect of Treaties
    Vienna Convention on Succession of States in respect of Treaties
    The Vienna Convention on Succession of States in respect of Treaties is an international treaty promulgated in 1978 to set rules on succession of states...

  • The Vienna Convention on Diplomatic Relations
    Vienna Convention on Diplomatic Relations
    The Vienna Convention on Diplomatic Relations of 1961 is an international treaty that defines a framework for diplomatic relations between independent countries. It specifies the privileges of a diplomatic mission that enable diplomats to perform their function without fear of coercion or...

  • The Draft Articles on the Responsibility of States for Internationally Wrongful Acts
  • The International Criminal Court
    International Criminal Court
    The International Criminal Court is a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression .It came into being on 1 July 2002—the date its founding treaty, the Rome Statute of the...

    , first proposed in December 1948 at the request of the UN General Assembly.

Criticism


One criticism sounded about the work of the commission is that the brevity of its annual sessions (10 to 12 weeks) does not allow thorough study of the problems under discussion. Already at the 83 meeting of the commission, held on May 17, 1951, commission member Georges Scelle
Georges Scelle
Georges Scelle was an international jurist and member of the United Nations International Law Commission....

 suggested the only way to fix the problem was by reforming the commission so that it would meet more often and whenever the Secretary General desired so.

For further reading

  • Shabtai Rosenne
    Shabtai Rosenne
    Shabtai Rosenne , formerly known as Sefton Wilfred David Rowson was a Professor of International Law and an Israeli diplomat....

    , "The International Law Commission 1940-59", British Yearbook of International Law, vol. 36 (1960)
  • H.W. Briggs, The International Law Commission (Ithaca, New York, Cornell University Press, 1965)
  • James Crawford, The International Law Commission's Articles on State Responsibility: Introduction, Text and Commentary (Cambridge, Cambridge University Press, 2002)
  • Georg Nolte (Ed.), Peace through International Law: The Role of the International Law Commission. A Colloquium at the Occasion of its Sixtieth Anniversary (Berlin, 2009)
  • Jeffrey S. Morton, The International Law Commission of the United Nations
  • Stephan Wittich, "The International Law Commission's Articles on the Responsibility of States for Internationally Wrongful Acts Adopted on Second Reading" Leiden Journal of International Law 15(2002) pp. 891-919

See also

  • United Nations Office of Legal Affairs
    United Nations Office of Legal Affairs
    The United Nations Office of Legal Affairs is a United Nations agency, established in 1946, that performs several key functions in the area of international law....

  • United Nations General Assembly Sixth Committee (Legal)

External links