Codification Illustrated: 70 years of the International Law Commission in pictures

In 2018, a photo exhibition illustrating 70 years of ILC activities was shown in New York and Geneva, and later in Bangkok, The Hague and Washington. In view of its success, the Codification Division, which organised the exhibition – and which ensures the Commission’s secretariat – has taken the initiative of publishing a brilliantly illustrated and intelligently commented booklet, also available on the Internet (https://legal.un.org/ilc/publications/pdfs/ilc_exhibit_book.pdf).

This is a pleasant way not only of highlighting the work carried out by the ILC since its creation but also of taking stock of public international law as it stands today. Reading the book, one realises that the main areas of international law have been covered, albeit unevenly, by the Commission’s work. There are, of course, the elements of the “constitution” of the international society, those monuments that are the conventions on diplomatic and consular relations or the law of treaties and the 2001 Articles on State Responsibility, but also all the projects devoted to more special subjects though often central to international relations: the law of the sea, international criminal law, succession of States, nationality, environmental protection, etc., which have been addressed, with varying degrees of success, by the Commission, even if some of them are missing (the law of armed conflict, largely the competences of the State or the protection of human rights).

Nevertheless, the authors have brightly succeeded in presenting, in a concise manner and without oversimplification, the whole of international law, based on the work of the ILC, in what is a sort of “illustrated memento”, whose small format sometimes (rarely) obliges them to make approximate shortcuts (e.g. on the definition of treaties limited to written instruments, without specifying that this precision only applies to the 1969 Vienna Convention); but this is nit-picking, the tour de force is there: from hundreds of photographs, it is not only the codification enterprise but the whole of international law that are introduced.

Without doubt, specialists in international law will not learn much that they do not already know – although they may usefully refresh their memory – but they will enter the backstage of the ILC’s work, whose methods are not always well known, even by them. Non-lawyers will find it a pleasant initiation to our discipline to read the introductions of the chapters and the commentaries on the photographs that illustrate the book which are always very accessible.

The booklet is divided into 20 short chapters (it is only 160 pages long): the first six describe the codification movement that led to the creation of the Commission, while the next 17 are devoted to the different areas in which the Commission has been working to progressively develop and codify them: Fundamental rights and duties of States, International criminal justice, The law of the sea, State responsibility, The law of treaties, Sources of international law, Diplomatic and consular relations, Jurisdiction and immunity, Nationality and statelessness, Succession of States – the 17^th Chapter grouping together various “specialised fields” (international water law, disaster relief, non-discrimination in international trade and investment, protection of the environment). The last three chapters deal with other codification bodies, a useful presentation of legal resources related to the work of the Commission, and a summary of its 70 years, consisting mainly of reproductions of the annual ritual photos of all members.

Each chapter is introduced by a brief notice putting the subject into perspective and presenting the outcome of the Commission’s work. Then follows – and this is the originality of the book – a series of photos illustrating each theme and commented by concise but enlightening notes.

The iconography, which is very diverse, is remarkable: reproductions of paintings (The Battle of Cherbourg where the Alabama was sunk in 1864 by Edouard Manet to illustrate the promotion of the peaceful settlement of disputes following the 1872 arbitration or the famous painting by Hans Holbein the Younger depicting “The Ambassadors” which embellishes the developments on diplomatic relations), portraits (of Grotius or Jeremy Bentham), and a very large number of group photos whose authors have taken the trouble to find and indicate the names of the people in them – what a pleasure to be able to put faces to the names of Henri Dunant (nice sideburns!), Manley Hudson, Fridtjof Nansen, Georges Scelle or Gilberto Amado) – for that purpose, use the electronic version which allows you to zoom in on the individual figures…

And it is with some emotion that we look at, besides the reproduction of the cover of some rare documents (the Treaty of Qadesh, engraved in stone in 1258 BC, the Act of the Congress of Vienna of 1815, the Nobel Peace Prize diploma awarded to the Institut de Droit International in 1904, or the statutes of the Barcelona Traction), the photos of the Lotus, the object of the disastrous 1927 CPJI ruling, the Ambatielos or the magnificent Argentine three-masted training ship Ara Libertad, all names that speak to any internationalist. And the same goes for the Chorzów factory, the Trail smetlter, the pulp mill built on the banks of the Uruguay River, or the Villa Vigoni, a German-Italian cultural centre on the peaceful shores of Lake Como, whose commentary mischievously (but with a certain diplomatic caution) points out that “in 2012, it was at the centre of a legal dispute over the doctrine of State immunity, when Italy sought to seize it as reparation for alleged international crimes committed by Germany during the Second World War” – the same circumspection can be found with regard, for example, to the accident at the Chernobyl power plant, which, it is said, shows “that industrial disasters can have significant transboundary effects”; that is an understatement! But this corresponds quite well to the very timid Principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities, laboriously adopted by the Commission in 2006, which were said, not without reason, to be to environmental protection what decaffeinated coffee is to coffee. And for the discreet (and slightly ironic) humour, one can think of the commentary on a photo of the members of the Legal Section of the LoN Secretariat: the men sitting on a comfortable sofa, the ladies of the secretariat standing behind – who, as indicated, could not be identified unlike the gentlemen; and the authors wonder: “Perhaps a sign of the times?”.

A good question – to which the answer is unfortunately negative: as stated in the section “Women on the Commission”, “the first female members were elected only in 2001” and “[s]ince 2016, four women have been serving on the Commission (…), alongside 30 men”. A proposal I made in the early 2000s to amend the Statutes, which would have obliged States to systematically propose a ‘ticket’ of two nominees of both sexes, was not well received. At the current rate, parity will (perhaps) be achieved by the end of the century…

Although this beautiful booklet avoids the hagiography that one might have feared and is, no doubt rightly, careful to avoid any personalisation (the fundamental role of Roberto Ago and James Crawford in the successful codification of the law of State responsibility is not emphasised), one cannot expect to find any criticism, or only watered-down, of the Commission. Having spent 22 years in the Commission, and without regretting the long days spent in the windowless Room XXI of the Palais des Nations in Geneva, I think I am in a good position to know that it does deserve some. Not the least of which is the decline in quality (overall – there are brilliant exceptions) of the appointment of its too many members: whereas, until the 1970s, perhaps 1980s, the best legal minds sat on it when they were not Judges in The Hague, the process is now undermined by the politicisation of elections and, no doubt, the lack of interest of States which is also evident in the choice of the subjects dealt with by the Commission (largely left to its members) and the poverty of the debates in the Sixth Committee, which generally turn into a dialogue of the deaf, with delegates sticking to traditional national positions without taking the ILC’s work seriously. This lack of interest can also be seen as a reflection of the crisis of confidence in international law.

But the pleasure of reading this book should not be spoiled: the booklet prepared by the Codification Division is a great success that perfectly fulfils the objective of its instigators as described by the UN Legal Counsel in his preface: “visually telling the story of the development of international law over the course of two centuries” and enabling a wide audience to become familiar with the work of the Commission.

This review is also available to read in French.

The featured image is of the Inaugural session of the International Law Commission, 12 April 1949, reproduced with the permission of United Nations Photo/ES.