On the ILC, professional background, gender and positivism: A Rejoinder to Jan Klabbers

In “Codification by Interpretation”: The International Law Commission as an Interpreter of International Law, I argue that the United Nations (‘UN’) International Law Commission (‘ILC’) interprets international law; interpretation falls squarely within the ILC’s mandate; the ILC’s interpretative pronouncements can trigger an interpretative dialogue with States whose reactions can lead to ‘authoritative interpretations’; and ‘codification by interpretation’, especially in relation to the law of treaties, may be explained by the ILC’s vision to reinforce international law by instilling the rules on ‘law-making’ with clarity and certainty over time, thus convincing States to continue to use international law as a means for regulating international affairs. This last point is a significant endeavour at a time when some States seem increasingly keen to depart from multilateralism.

Jan Klabbers, in the same issue of EJIL, has commented on my article. I dispel his misunderstanding of my argument in a Letter to the Editors in a forthcoming issue of EJIL. However, Klabbers also asks (I paraphrase bluntly): why should we listen to the ILC? And urges international law scholars not to lose sight of political theory. In the hope that the debate is further enriched, I comment here on some of Klabbers’ points.

Klabbers is of course right that the real life implications of positive law should concern all international lawyers. The importance of this relationship, however, can only be appreciated through a careful account of its details. I agree with Klabbers that the ILC’s ‘authority’ should not be unrestrained and I have argued in my EJIL article that the ILC’s authority is tamed by States’ reactions, and elsewhere that it should be tamed by demonstrable persuasiveness by the ILC. But, Klabbers considers that the ILC lacks democratic characteristics and representativeness. These concerns are not new – they have been charged before at international institutions within the UN system and beyond, and call for characteristics that make authority legitimate today. Yet, ‘democracy’, ‘representativeness’, and the terms ‘political’ and ‘partisan’ are different concepts, and some do not have a precise meaning in international law. Since Klabbers does not define them, they can be relied on to make different arguments.

Professional ‘Representativeness’

First, for Klabbers, the ILC is not representative because it is composed of a ‘fairly random selection of international lawyers many of them with a Foreign Office background (rather than judicial or academic)’ (Klabbers, p. 279). Yet, taking Klabbers’ proposition on its face, it may be argued that government experience is evidence of ‘representativeness’ in terms of professional background (academics are not the only international lawyers); or that academics should be elected by domestic parliaments before they are nominated by governments given that they lack any democratic legitimacy otherwise.

Second, Klabbers argues that even academics that are ILC Members ‘may be socialized into partisan thinking as state representatives’. It is unclear whether by ‘partisan thinking’ he means that someone may have an agenda supporting a State-oriented understanding of international law or whether he or she favours the interests of a particular State or group of States. But, there are academics that are (c)overtly partisan (in either of these meanings) even if they have not had experience in government, and equally there are academics with government experience that are not. This critique can only stand for as long as Klabbers does not define ‘non-partisan thinking’.

Third, Klabbers considers that in the International Court of Justice (‘ICJ’) there is ‘a strong component of expertise involved over and above politics’ compared to the ILC. But, empirical data shows that the composition of the ILC is not substantially different from that of the ICJ in terms of professional background. Although ILC Members may change professional affiliation during their term, relying on the biographies submitted as part of the ILC Members’ nomination in the current quinquennium (UN Doc. A/71/83), and on the last professional position before becoming ICJ Judges according to the biographies of ICJ Judges on the Court’s website, the ILC has a larger percentage of individuals that did not hold a current government position immediately prior to their election: ILC 65%; ICJ 53.2%. And, even if we classify the 8 ILC Members and 2 ICJ Judges that have held some position in government at some point in their career (rather than immediately prior to their election) as having a ‘government background’, this would entail that 59% of ILC Members and 60% of ICJ Judges would have government backgrounds. On either of these readings the professional background in the ILC and the ICJ is similar. Additionally, numerous ICJ Judges have been ILC Members in the past. Currently, 7 ICJ Judges out of 15 have been ILC Members. True, ICJ Judges benefit from judicial independence required by the ICJ Statute (Article 20), while ILC Members do not (in practice they ‘sit in their individual capacity and not as representatives of Governments’: ILCYB, Vol. II, 1979, p. 186[4]). But, why should we consider that people who have similar professional background or even the same people would not provide ‘expertise over and above politics’ in the ILC?

It might be that some States nominate government lawyers as candidates for the ILC in order to ‘capture’ the ILC’s reasoning (thus controlling the content of its outputs and its ‘authority’, given that there is not much appetite for diplomatic conferences). But, in my view the solution is not found in this option nor can it be found in excluding or placing a numerical cap on how many ILC Members have a particular professional background. For one thing, these options in practice are very difficult, since international lawyers have diverse professional experiences. Rather, assessing the intellectual transparency and persuasiveness of the legal reasoning of the ILC and its Members (through their statements in plenary or their Reports when acting as Special Rapporteurs) is the better (and a concrete) criterion for evaluating whether the ILC is (and/or individual Members are) political or partisan or not. Demonstrable intellectual persuasiveness (or what Thomas Franck calls ‘adherence’) tames and bolsters the ILC’s ‘authority’, and should guide States and others in their assessment of the ILC’s work.

Gender Representation

I share Klabbers’ concern that the ILC lacks gender representation. In the ILC’s current quinquennium there are only 4 women out of 34 ILC Members; and this is an improvement (!) from the previous quinquennium where there were only 2 women out of 34. I will make three comments.

First, governments ought to nominate more women candidates not least because having more women ILC Members would reflect the reality of our diverse community of international lawyers (including in academia, government, and the judiciary), and the reality that international law affects men and women. Since ‘women belong where decisions are being made’ (to quote Ruth Bader Ginsburg), more women ILC members would be testament to the fact that the ILC is influential.

Second, there is a wealth of excellent female international lawyers across regional groups. The Asia and the Pacific Group was at the forefront with China nominating the first female ILC Member elected in 2001: (now) Judge Xue, Vice-President of the ICJ. In the current quinquennium, the 4 women elected were the only women nominated and all had been nominated by States in one regional group (WEOG). It is to be hoped that in the upcoming elections female candidates will be amongst those nominated by all regional groups.

Third, at least as an empirical observation (I make no wider claim), the ‘ceiling’ would not have been broken but for women with government backgrounds. Had we considered in 2001 (or today) that some government affiliation or experience is an impediment, as Klabbers criticism might imply, we would not even have the ‘breakthrough’ of women on the ILC. Thus, how we approach ‘representativeness’ calls for further systemic and more nuanced reflection.

Positivism and Political Theory

Klabbers encourages international law scholars not only to be ‘technically brilliant’ but also to not lose sight of political theory. Yet, because he chose a direct method to critique the politics surrounding the ILC, he perhaps lost sight of the fact that my analysis emphasises the process character of the ILC’s working and its relationship with the Sixth Committee because I am well aware of the politics within and surrounding the ILC and because I do not consider the ILC to be ‘a-political’, as he suggests (Klabbers, p. 279). Positive law scholarship and intellectual precision are not only valuable for the practice of international law. They are also essential for our common understanding about what the law is (or is not) and what the different legal arguments entail in order to be able to have a meaningful discussion about ‘political theory staples’. And, as academics, we may choose particular tools – in the case of my article, positive law – in order to provide the basis for a reaction from other scholarship (positivist or other). In this sense, I am grateful to Jan Klabbers for his comments that assist with the real goal of my article: to open a diverse and fruitful debate about interpretation and the modern role of the ILC, at a time when cooperation and multilateralism face real and persistent challenges.