70 Years of the International Law Commission: Drawing a Balance for the Future

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This post, and its sister post on OpinioJuris, mark the start of the seventieth session of the International Law Commission. Under the theme “70 years of the International Law Commission: Drawing a Balance for the Future”, commemorative events will be held on 21 May in New York and on 5-6 July in Geneva. In these two posts, Christiane Ahlborn and Bart Smit Duijzentkunst of the Codification Division of the United Nations Office of Legal Affairs, which serves as the secretariat of the Commission, place the role of the Commission in a historical context and discuss its promises and challenges moving forward.

This week the International Law Commission has started its seventieth session in New York. From its first session, in 1949, the Commission has played an indispensable role in the promotion of the “progressive development of international law and its codification”. Yet the desire to “codify” international law – to formulate and systematize rules of international law in order to avoid conflicting norms and enhance legal certainty – predates the Commission by many decades, if not centuries. An exhibit exploring the history and the achievements of the Commission is currently on display in the Visitors Lobby of the General Assembly Building at the United Nations Headquarters in New York. Here are five things you may not know about the International Law Commission and the codification movement from which it emerged.

The Founding Father

If Hugo Grotius is the “father” of international law, the progenitor of the codification movement is Jeremy Bentham (1748-1832). A lawyer, philosopher and social activist, Bentham strongly believed in the importance of positive law: “to be without a code is to be without justice”, as he put it (Letter to Daniel O’Connell, Works of Jeremy Bentham, Vol. X, p. 597). In his view, a comprehensive, written code would remove legal gaps and inconsistencies and make the law accessible to all. It would also guard against judge-made rules and – even worse in Bentham’s eyes – natural law (“nonsense upon stilts” (Anarchical Fallacies, ibid., Vol. II, p. 501)).

Bentham’s codification efforts extended to the international sphere. Like many later codifiers, he hoped that a set of written rules could prevent war and establish a lasting peace. His desire to rid international rules of the vestiges of natural law went so far that he proposed to replace the commonly used term “law of nations”, which encompassed an array of moral principles, with a new term: “international law” (An Introduction to the Principles of Morals and Legislation, ibid., Vol. I, p. iii).

A Social Movement

Over the course of the 19th century, the codification movement gathered steam. Several authors proposed their own international codes, such as the Swiss-German Johann Caspar Bluntschli (Das moderne Völkerrecht der civilisirten Staaten als Rechtsbuch dargestellt, 1868) and the Italian Pasquale Fiore (Il Diritto Internazionale Codificato e la sua Sanzione giuridica, 1890). In 1873 two associations were established to further the cause: the Institut de droit International and the Association for the Reform and Codification of the Law of Nations (now known as the International Law Association (ILA)). Among diplomats, lawyers and activists, codification became a political ideal on par with disarmament and free trade. The codification movement was so much in the public eye that a Dutch satirical magazine mocked the process in 1875, at the occasion of the third annual ILA conference in The Hague (see illustration). The cartoon is entitled “Congress for the Codification of the Law of Nations”; the comment reads “A Babylonian confusion of words that will [surely] lead to peace.”

The Institut and the ILA continue to influence the development of international law. They differ from the International Law Commission in that the latter derives its mandate and authority from an intergovernmental body, the General Assembly of the United Nations, and regularly interacts with governments in a formal fashion. It is the General Assembly, acting through its Sixth (Legal) Committee, that debates and decides on the fate of the outcomes of the Commission’s work. As a United Nations organ, the Commission also guarantees a representation of views from all corners of the world, as seats are allocated on a regional basis. Still, given the expertise of the Institut and the ILA, and the overlap in its membership with the Commission, the associations and the Commission mutually reinforce each other.

The League of Nations Committee

The International Law Commission is not the first codification body established by States. In 1924 the League of Nations appointed 17 legal experts to the “Committee for the Progressive Codification of International Law”. The Committee was chaired by Hjalmar Hammarskjöld, the father of the later Secretary-General of the United Nations, and its members included a young British lawyer called James Brierly, who would later be among the first members of the International Law Commission. Unlike the current Commission, the mandate of the League of Nations’ Committee was limited to identifying items “ripe for codification”.

Upon its recommendation, the League convened a Codification Conference in The Hague in 1930, to work on the topics nationality, territorial waters and State responsibility. The exercise proved overly ambitious: without draft conventions or negotiating texts, delegates found that they had too little time to cover the many complex issues on the agenda. As it turned out, codification involved more than mechanically transcribing customary law into written agreements; it also required the progressive development of new rules, to fill gaps and resolve conflicts – a political as much as a legal exercise.

In the end, the Conference produced few noticeable results. However, it did make general recommendations to improve the codification process, in particular regarding the importance of preparing draft conventions prior to convening a diplomatic conference. Many of the lessons from the 1930 Codification Conference informed the drafting, in 1947, of the Statute of the International Law Commission.

Codification v. Progressive Development

Pursuant to Article 13(1)(a) of the Charter of the United Nations, as well as its own Statute, the Commission is mandated to promote the codification of international law – the precise formulation and systemization of existing international rules – and its progressive development – the formulation of new rules of international law. Whether the Commission should focus on one or the other remains an oft-debated topic. The truth is that the Commission’s statute provides for both. Its drafters already acknowledged that the two are “not mutually exclusive” and that the distinction was only drawn “for convenience of reference” (A/331, para. 7). In their view, “no clear-cut distinction between the formulation of the law as it is and the law as it ought to be could be rigidly maintained in practice” (ibid., para. 10). Still, the distinction remains meaningful. A lack of differentiation risks either understating or overestimating the existing international legal obligations of States.

Achievements

In seventy years the Commission has faced plenty of challenges, yet its results are remarkable. The 1969 Vienna Convention on the Law of Treaties and the 2001 articles on State responsibility for internationally wrongful acts and are well-known outcomes of its work. However, the Commission also laid the foundation of the current regime on the law of the sea: its 1956 articles concerning the law of the sea formed the basis of the first Conference on the Law of the Sea in Geneva in 1958, a process that set the stage for the subsequent negotiation and adoption of the 1982 United Nations Convention on the Law of the Sea. Moreover, without the Commission there may not have been an International Criminal Court: having worked on international criminal justice since its first session in 1949, it provided the first draft of the Statute that was negotiated during the 1998 Rome Conference. The Commission remains the main standard-setter in many technical areas, from transboundary aquifers to state succession. Through these activities, the Commission has laid – and continues to further – a solid legal foundation for peaceful international relations.

The exhibit on “70 Years of the International Law Commission” will be on display at the Visitors Lobby of the United Nations Headquarters in New York until 1 June 2018. It will then move to the Palais des Nations in Geneva in July 2018. For more information about the commemorative events, visit the website of the Commission .

 

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    Marina Brilman says

    May 3, 2018

    Thank you for this overview, Christiane and Bart. I will only address the part on codification and progressive development of norms. The Survey of International Law in Relation to the Work of Codification of the International Law Commission of 1949 (“The Survey”, para.3) suggests, as you mention, that the definitions of codification and progressive development were only adopted “for the sake of convenience”. This masks the real difficulty of making a distinction between the two that has marked the ILC’s work from its very beginnings (see Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law, para. 32). As I argued in a chapter on international law’s normativity, in Derecho internacional. Poder y límites del derecho en la sociedad global (R. Urueña, ed.), the significance of such a distinction seems obvious, since a norm that ‘merely’ codifies already existing law seems obviously legitimate with codification a formality (although it also evidences the norm’s existence), whereas the legitimacy of a norm whose legally binding character has not (yet) been established may be questioned.
    However, apart from the substantive significance of such a distinction – which may be impossible to draw in any case with regard to a specific norm – I believe that the distinction between codification and progressive development in the mandate of the ILC also served a different function: namely to establish the authority of the ILC and its members. In order for the ILC’s relevance to be beyond question, it had to be assumed that “there was no intention that the Commission should limit itself, in the matter of codification, to mere recording, in a systematized form, of the existing law” (The Survey, para. 3). As Professor Brierly, pointed out (idem):
    “[a]s soon as you set out to do this [codification], you discover that the existing law is often uncertain, that for one reason or another there are gaps in it which are not covered. If you were to disregard these uncertainties and these gaps and simply include in your code rules of existing law which are absolutely certain and clear, the work would have little value. Hence, the codifier, if he is competent for his work, will make suggestions of his own; where the rule is uncertain, he will suggest which is the better view; where a gap exists, he will suggest how it can best be filled... he will be working on the lex ferenda, not the lex lata—he will be extending the law and not merely stating the law that already exists”.

    The intention was not to be bogged down into “mere recording”. Rather, there should be enough space for the “codifier” to engage in the humble task of “filling gaps”, but also to “extend the law”. If the work of the ILC “were confined to fields with regard to which there is a full measure of agreement among States, the scope of its task would be reduced to a bare minimum. It would be reduced to matters of small compass the exclusive preoccupation with which would impair from the very inception the stature and authority of the International Law Commission” (The Survey, para. 11).
    Therefore, rather than relying on a restrictive or conventional interpretation of codification, the meaning of codification was reformulated. In the words of a member of a Committee of Experts: “codification is a creative process” (The Survey, para. 5). Such a reformulation of codification necessarily also recasts the distinction between it and progressive development. It was also agreed that the ILC’s focus should not be on profane details, but on “grandes lignes” (The Survey, para. 12). Codification as a mere “record of the past” risked laying down norms that had already, or would soon become, obsolete. Such an understanding of codification would inhibit “progress” (The Survey, para. 13).
    As you mention, the ILC’s mandate is not limited to “picking” topics that are “ripe” for codification. However, this does form an important part of its work, if I am not mistaken. The ILC regarded a topic as “ripe” when codification was “necessary or desirable” - according to the ILC (article 18.2 ILC’s Statute; The Survey, para. 15). In other words, when a topic was developed enough so as to not fall into the category of progressive development, but not developed enough for it to make codification superfluous. See, for example, the ICJ judgment in Jurisdictional Immunities of the State (Germany v. Italy), para. 89, that refers to the subject of the “limitation of State immunity by reference to the gravity of the violation or the peremptory character of the rule breached”, which was considered by an ILC Working Group to “not seem to be ripe enough for the Working Group to engage in a codification exercise over it”.
    The agricultural metaphor of “picking” something that is already “ripe” suggests a minor intervention and a limitation of legal creativity. It leaves the question of the selection of topics for codification unresolved and disguises its perhaps arbitrary nature. In The Survey, such arbitrariness is denied because the ILC would codify the “entirety of international law” anyway, so that selection wouldn’t really matter. It sufficed to say that selection would be “determined by considerations of convenience, of available means and personnel, of classification, and of scientific symmetry” (The Survey, para. 19). Since the ILC set itself the task of the universal regulation of international law, the picking of topics for codification supposedly became a matter of logistics rather than a substantive, but potentially arbitrary, exercise.

    John R Morss says

    May 3, 2018

    Many thanks for this. One small typo, Bentham's critique was of natural rights not natural law as a whole. He was an Hohfeldian so to speak.