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Published online by Cambridge University Press: 21 July 2009
The object of this study is, as suggested by its title: “The Role of the International Law Commission in the Decade of International Law”. In this exercise, the title role will be played by the International Law Commission in the context of the ‘Decade of International Law’ recently proclaimed by the General Assembly of the United Nations. The contribution to be expected of the Commission will be viewed from the perspective of the prospect of enhancing the practice of states in the adoption of available means of their choice for the peaceful settlement of international disputes.
1. See G.A. Res. 44/23 of Nov. 17, 1989, moved by the Non-Aligned Countries following the initiative taken by their foreign ministers at the Conference in The Hague on June 26–29, 1989.
2. The I.L.C. was never endowed with the monopoly of international law-making. For its precise purpose,See Section 2 below.
3. For an informative and instructive study of the I.L.C. up to 1986, See Sinclair, Hersch Lauterpacht Memorial Lectures, 45–112 (1987).
4. The Commission has only marginally touched the periphery of the field of private international law in such topic as ‘Jurisdictional Immunities of States and their Property’, especially reference has been made on one occasion to the relevant rules of private international law regarding competent jurisdiction and the applicable law (draft Article 11).
5. League of Nations O.J. Spec. Supp. 21, at 10; compare Art. 8 of the Statute of the Commission. In fact, codification through governmental efforts dated back to the Congress of Vienna in 1815. Notable among codification conferences may be mentioned the two Hague Peace Conferences of 1899 and 1907 in regard to certain aspects of the laws of war and pacific settlement of international disputes.
6. League of Nations O.J. Spec. Supp. 53, at 9.
7. Compare the qualifications required of members of the International Court of Justice under Art. 2 of the Statute of the Court.
8. The application of Para. 2 of Art. 1 of the Statute during merger between Egypt and Syria resulted in the lapse of membership of the late Judge Abdullah El-Erian and the maintenance of only one member, El Khouri. El-Erian was reelected for a new mandate beginning in 1962. A similar occurrence may be expected upon the unification of the two German states.
9. U.N. Doc. A/CN.4/1 (1948), and Rev. 1 (1949).
10. This Resolution extended the mandate of the existing Commission (elected in 1948) to five years, ending in 1953 when another election took place.
11. Thus, in this first decade, elections took place in 1948,1953 and 1956.
12. Further enlargement also took place in 1961 and again in the 1981 from twenty-one to twenty-five and to thirty-four respectively.
13. L.L.C. Report (1956).
14. See Section 3 below, regarding more detailed assessment of the Commission's achievements.
15. Done at Vienna, April 18,1961, entered into force on April 24,1964. The Work of the I.L.C., Fourth Edition, U.N. 197–213(1989).
16. Examples of such endeavours are the UNCITRAL Arbitration Rules and ICSID Arbitration Rules.
17. See Res. 596 (VI) of Dec. 7,1951, postponing further consideration of the matter “until a sufficient number of States have transmitted their comments and suggestions”.
18. By Res. 488 (V) of Dec. 12, 1950, the formulation was sent to member states for comments.
19. It was not until 1978 by Res. 33/97 of Dec. 16, 1978 that member states and relevant international organizations were once again invited to submit comments and observations on the draft code. Now the topic is again under active consideration by the Commission, with Doudou Thiam (Senegal) as Special Rapporteur.
20. The General Assembly approved the substantive articles of the Draft Convention on the Nationality of Married Women prepared by the Commission on the Status of Married Women, and by Res. 1040 (XI)of Jan. 29,1957, adopted the Convention which came into force on Aug. 11,1958,309 U.N.T.S. 65.
21. The Convention entered into force on Dec. 13, 1976; states were parties in 1979.
22. By Res. 1647 (XVI) of Nov. 6, 1961.
23. Rosenne, The Law of Treaties: A Guide to the Legislative History of the Vienna Convention 35,36 (1970).
24. Done at Vienna, May 23, 1969, U.N. Doc. A/CONF.39/27; 8 I.L.M. 679 (1969).
25. Entered into force Jan. 27, 1980.
26. See Section 3 below, regarding assessment of the Commission's achievements.
27. By 1985, more than 140 states were bound by the Convention on Diplomatic Relations, 1961.
28. More than 110 states have become parties to the Convention on Consular Relations, 1963.
29. Res. 2530 (XXIV) of Dec. 8,1969. See Donnarumma, La Convention surles Missions Spédales, 1972 Revue Beige du Droit International 34–79.
30. II Y.B. I.L.C. 224 (1963).
31. II Y.B. I.L.C. 194–213 (1968).
32. II Y.B. I.L.C. 205–222 (1969).
33. Examples of such move include Lauterpacht, Fitzmaurice, Lachs, Alfaro, Cordova, Hudson. Gros, Koretsky, Krylov, Arechaga, Pinto, Spiropoulos.
34. Examples are Singh, Elias, Ruda, Sette-Camera.
35. This imbalance was rectified in 1977 after the untimely demise of one Western European member (Hambro). The Commission was compelled by its strong sense of justice to coopt Tabibi (Afghanistan), the Asian candidate who suffered the fate of losing his rightful place on the Commission at the 1976 election by the General Assembly.
36. U.N. Doc. A/CONF.67/17; See U.N. Conference on the Representation of States in their Relations with International Organizations, Vienna, Feb. 4 - Mar. 14, 1975, Official Records, Vols. I and II.
37. Done at Vienna on Aug. 23, 1978, consisting of 50 articles. The Convention was significant in its systematic treatment of different typology of state successions.
38. Res. 3166 (XXVIII) of Dec. 14, 1973. To this Resolution, the text of the Convention is annexed.
39. See II Y.B. I.L.C. (1978), especially with regard to proposals for additional Arts. 21 bis., A, 21 ter, 23 bis., and 28 (Settlement of Disputes).
40. See Section 2.4. on the fourth decade (1980–1989).
41. See Section 3, concerning Assessment of the Commission's achievements.
42. No new Special Rapporteur was appointed before the new mandate in 1982. Judge Schwebel nonetheless continued to submit another substantial report since joining the Court.
43. G.A. Res. 36/39, U.N. Doc. A/36/244 and Add. 1 (1981), amending Arts. 2 and 9 of the Statute.
44. See, e.g., T.M. Franck (Director UNITAR Research Department), The International Law Commission:The Need for a New Direction (Policy and Efficacy Studies, No. 1) (1981).
45. See Draft Articles in II Y.B. I.L.C. 17 (1981), and the text of the Convention in 22 I.L.M. 298–329 (1983).
46. The Convention was adopted by a vote of 67 in favour, 1 against (France), with 23 abstentions including socialist countries. The official text appearing in U.N. Doc. A/CONF.129/15, is also reproduced in 25 I.L.M. 543–592(1986).
47. See Report of the I.L.C. on the Work of its Forty-First Session, May 2 – July 21,1989,44 U.N. GAOR Supp (No. 10), U.N. Doc. A/44/10, paras. 17–72; See the draft articles at 26–117, and two draft optional protocols at 120–124, No. I for Special Missions and No. II for International Organizations of a universal character. See also, McCaffrey, S.C., The Forty-Second Session of the International Law Commission, 84 AJIL 930 (1990).CrossRefGoogle Scholar
48. See II Y.B. I.L.C. 7–22, paras. 10–22 (1986), including text of the draft article.
49. For the latest information available, see Report of the I.L.C, supra note 47, Chapter VI, Paras. 398–613, at 258–333.
50. See the Communiqué of the First Asian African Conference in Bandung, April 24, 1955.
51. See Report of the I.L.C., supra note 47, paras. 514–685, at 334–360, especially Art. 4 [Watercourse][System] Agreements.
52. Id., paras. 218–302, at 118–219.
53. II Y.B. I.L.C. 129 (1984), U.N. Doc. A/CN.4/378.
54. See Report of the I.L.C., supra note 47, Paras. 303–397, at 220–257. A complete set of some 30 draft articles was submitted to the Commission by the Special Rapporteur in 1990 to project an overall picture of the topic.
55. Id., Paras. 73–217, at 127–187.
56. Id., Paras. 686–726, at 361–379.
57. See Review of the Multilateral Treaty-Making Process, Report of the Working Group, U.N. Doc. A/C.6/39/L.12 (1984), especially the annexed “Final Document on the Review of the Multilateral Treaty-Making Process”, II: Preparation and Formulation of the Draft Treaty, para. 4.
58. For instance, Non-Governmental Organizations, such as the International Committee of the Red Cross (ICRC), have been active in the preparation of codification convention, such as the text of the 1977 Protocols of the General Convention of 1949 on the subject of humanitarian law in the regulation of an armed conflict.
59. Thus, Adede (Kenya), a Senior Legal Officer, was seconded to the position of Legal Adviser of the IAEA.
60. See Report of the I.L.C., supra note 47, Paras. 73–217, at 127–187, Art. 13: Threat of Aggression.
61. Id., at 168–169, e.g., massive pollution of the atmosphere or of the seas, harm to human environment.
62. See the Temple of Preah Vihear Case, 1962 I.C J. Rep..
63. See I.C.J. Communique No. 90/9, dated June 14,1990, Visit of the President of the Republic of Cyprus to the International Court of Justice.
