International Law Commission

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The International Law Commission was established by the United Nations General Assembly in 1948 for the "promotion of the progressive development of international law and its codification."[1]

It holds an annual session at the United Nations Office at Geneva.

Contents

Origin[edit]

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 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, 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[edit]

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[edit]

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[edit]

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[edit]

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, 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 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 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 was elected chairman of the commission for the duration of that session, while the Soviet member Vladimir Koretsky was elected first vice-chairman and Indian member Benegal Rau was elected second vice-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.[2]

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 from the commission's discussions. Highest priority was given to the topics of law of treaties, arbitration 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 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.[3] A large portion of the work on this issue was done by the Panamanian representative Ricardo Joaquín Alfaro Jované. The draft declaration was referred to the General Assembly for further deliberations, but in its resolution 596 of Dec. 7, 1951, the Assembly decided to postpone any further discussions on the document.

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[edit]

The 2nd session was held in Geneva from June 5 to July 29, 1950. The chairman of that session was Georges Scelle. 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: The desirability and possibility of establishing 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. Already at the first meeting of that session, the Soviet member Koretsky protested that the People's Republic of China was not represented on the commission, claiming it represented the Chinese people and not the Republic of China, now ruling in Taiwan only. He demanded the Chinese member of the commission be replaced by a member from mainland China. Commission chairman Scelle 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.[4] 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 further action was taken in that regard.

3rd session, 1951[edit]

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 was absent from the early meetings due to UN deliberations of Syrian complaints against Israel.

4th session, 1952[edit]

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[edit]

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 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[edit]

The 6th session was held in Paris from June 3 to July 28, 1954.

At the opening of the session, the chairman of UNESCO 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[edit]

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.[5]

8th session, 1956[edit]

The 8th session was held in Geneva from April 23 to July 4, 1956.

9th session, 1957[edit]

The 9th session was held in Geneva from April 23 to June 28, 1957.

10th session, 1958[edit]

The 10th session was held in Geneva from April 28 to July 4, 1958.

11th session, 1959[edit]

The 11th session was held in Geneva from April 20 to June 26, 1959.

12th session, 1960[edit]

The 12th session was held in Geneva from April 25 to July 1, 1960.

13th session, 1961[edit]

The 13 session was held in Geneva from May 1 to July 7, 1961.

14th session, 1962[edit]

The 14th session was held in Geneva from April 24 to June 29, 1962.

15th session, 1963[edit]

The 15th session was held in Geneva from May 6 to July 12, 1963.

16th session, 1964[edit]

The 16th session was held in Geneva from May 11 to July 24, 1964.

17th session, 1965[edit]

The 17th session was held in two parts: in Geneva from May 3 to July 9, 1965 and in Monaco from January 3 to 28, 1966.

18th session, 1966[edit]

The 18th session was held in Geneva from May 4 to July 19, 1966.

19th session, 1967[edit]

The 19th session was held in Geneva from May 8 to July 14, 1967.

20th session, 1968[edit]

The 20th session was held in Geneva from May 27 to August 2, 1968.

21st session, 1969[edit]

The 21st session was held in Geneva from June 2 to August 8, 1969.

22nd session, 1970[edit]

The 22nd session was held in Geneva from May 4 to July 10, 1970.

23rd session, 1971[edit]

The 23rd session was held in Geneva from April 26 to July 30, 1971.

24th session, 1972[edit]

The 24th session was held in Geneva from May 2 to July 7, 1972.

25th session, 1973[edit]

The 25th session was held in Geneva from May 7 to July 13, 1973.

26th session, 1974[edit]

The 26th session was held in Geneva from May 6 to July 26, 1974.

27th session, 1975[edit]

The 27th session was held in Geneva from May 5 to July 25, 1975.

28th session, 1976[edit]

The 28th session was held in Geneva from May 3 to July 23, 1976.

29th session, 1977[edit]

The 29th session was held in Geneva from May 3 to July 29, 1977.

30th session, 1978[edit]

The 30th session was held in Geneva from May 8 to July 28, 1978.

31st session, 1979[edit]

The 31st session was held in Geneva from May 14 to August 3, 1979.

32nd session, 1980[edit]

The 32nd session was held in Geneva from May 5 to July 25, 1980.

33rd session, 1981[edit]

The 33rd session was held in Geneva from May 4 to July 24, 1981.

34th session, 1982[edit]

The 34th session was held in Geneva from May 3 to July 23, 1982.

35th session, 1983[edit]

The 35th session was held in Geneva from May 3 to July 22, 1983.

36th session, 1984[edit]

The 36th session was held in Geneva from May 7 to July 27, 1984.

37th session, 1985[edit]

The 37th session was held in Geneva from May 6 to July 26, 1985.

38th session, 1986[edit]

The 38th session was held in Geneva from May 5 to July 11, 1986.

39th session, 1987[edit]

The 39th session was held in Geneva from May 4 to July 17, 1987.

40th session, 1988[edit]

The 40th session was held in Geneva from May 9 to July 29, 1988.

41st session, 1989[edit]

The 41st session was held from in Geneva from May 2 to July 21, 1989.

42nd session, 1990[edit]

The 42nd session was held in Geneva from May 1 to July 20, 1990.

43rd session, 1991[edit]

The 43rd session was held in Geneva from April 29 to July 19, 1991.

44th session, 1992[edit]

The 44th session was held in Geneva from May 4 to July 24, 1992.

45th session, 1993[edit]

The 45th session was held in Geneva from May 3 to July 23, 1993.

46th session, 1994[edit]

The 46th session was held in Geneva from May 2 to July 22, 1994.

47th session, 1995[edit]

The 47th session was held in Geneva from May 2 to July 21, 1995.

48th session, 1996[edit]

The 48th session was held in Geneva from May 6 to July 26, 1996.

49th session, 1997[edit]

The 49th session was held in Geneva from May 12 to July 18, 1997.

50th session, 1998[edit]

The 50th session was held in two parts: in Geneva from April 27 to June 12 and in New York from July 27 to August 14, 1998.

51st session, 1999[edit]

The 51st session was held in Geneva from May 3 to July 23, 1999.

52nd session, 2000[edit]

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[edit]

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[edit]

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[edit]

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[edit]

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[edit]

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[edit]

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[edit]

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[edit]

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[edit]

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[edit]

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[edit]

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[edit]

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

65th session, 2013[edit]

The 65th session was held in Geneva in two parts from May 6 to June 7 and from July 8 to August 9, 2013.

Achievements[edit]

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 [1]), for example:

Criticism[edit]

One of the problems regarding the work of the commission is the capability of governments to ignore its conclusions and refrain from accepting its recommendations when formulating conventions. At the 63rd meeting on July 7, 1950, chairman Georges Scelle complained that governments tended to ignore questions addressed to them by the commission out of lack of interest in its work.[6]

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 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.[7]

Another criticism sounded already at the early history of the commission was made by Colombian delegate Jose Maria Yepes that the commission refrained from formulating principles on new issues and thus presents itself as incompetent.[8]

References[edit]

  1. ^ United Nations General Assembly Resolution A/RES/174(II) 21 November 1947. Retrieved 2007-09-28.
  2. ^ Yearbook of the ILC, 1949, p. 32
  3. ^ Draft Declaration on Rights and Duties of States, 1949
  4. ^ Yearbook of the ILC, 1950, vol. 1, pp. 1-2
  5. ^ Yearbook of the ILC, 1949, p. v
  6. ^ Yearbook of the ILC, 1950, vol. 1, p. 183
  7. ^ Yearbook of the ILC, 1951, vol. 1, p. 9.
  8. ^ Yearbook of the ILC, 1950, vol. 1, p. 217

For further reading[edit]

  • Shabtai Rosenne, "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[edit]

External links[edit]