2. The Committee of 17

On a Monday afternoon in May 1947, 18 menFootnote ⁴⁰ meet at Lake Success, New York. Together, they will spend the spring in brick-walled rooms with high ceilings, closed theatre-like curtains, and chairs arranged as if an audience can walk in any minute; a play about to start. The men – all wearing suits and ties – are seated at tables in a U shape, their respective countries’ names displayed next to carafes of water and ashtrays. This is the Committee on the Progressive Development of International Law and its Codification, also known as the ‘Committee of Seventeen’ (C17 or the Committee). In December 1946, the General Assembly directed the Committee to study the methods by which the progressive development and codification of international law should be encouraged,Footnote ⁴¹ following Article 13 of the UN Charter. While the Sixth Committee had initially recommended that the General Assembly establish a committee of 16 members, which should be composed exclusively of governmental representatives,Footnote ⁴² the president of the General Assembly nominated 17 states instead.Footnote ⁴³ The men indeed served on C17 as delegates representing their respective countries, but they were also all legal experts.Footnote ⁴⁴ In total, 31 men took a seat at least once on the Committee, which held 30 meetings between 12 May and 17 June 1947.Footnote ⁴⁵

During those meetings, the Committee was often incomplete, as not all of its 17 members were present. For example, the Egyptian delegate missed the first four meetings; most often absent – eight times in total – was the Panamanian representative. Others also occasionally did not attend because they simultaneously served on other UN committees or had to be at meetings of the General Assembly. Not listed on the attendance sheet, but presumably (almost) always present, were Ivan Kerno (Assistant Secretary-General) and Yuen Li-Liang (Director of the Division of Development and Codification of International Law, acting as Secretary to the Committee). While they could not vote, they did, at times, take part in the discussions.Footnote ⁴⁶

At one of C17’s first meetings, Brierly – who in 1924 had joined two meetings of the League of Nations Committee of Experts for the Progressive Codification of International Law,Footnote ⁴⁷ and was elected as Special Rapporteur of C17 – refers to the ‘friendly atmosphere in the Committee’.Footnote ⁴⁸ Reading the summary records, however, it is difficult to imagine that the atmosphere remained friendly throughout all 30 meetings. After only a few days together, the French delegate – Donnedieu de Vabres – accuses the Soviet delegate – Koretsky – of violating the ‘basic principle of the United Nations: the democratic principle of solidarity’.Footnote ⁴⁹ Not much later, Brierly tells Koretsky (‘his friend from the Soviet Union’) that his speech had been ‘vigorous’, that he is wrong about most things, had misunderstood his position, and had accused him of being inconsistent.Footnote ⁵⁰ In his turn, Koretsky suggested that ‘the debate should be conducted in a more realistic manner’.Footnote ⁵¹

In 2014, James Crawford characterized the meetings of the Committee as ‘one of the earliest Cold War skirmishes within international law’.Footnote ⁵² He argued that ‘states opposed to the evolution and elaboration of international law made themselves known’ ^{Footnote 53} as it was the Soviet (delegate’s) aim to bring the International Law Commission under state control or even ‘to replicate the paralysis seen at the Hague in 1930’.Footnote ⁵⁴ In Crawford’s view, Koretsky was actively trying to resist the realization of ‘the true aim of the Committee of 17 (or at least some of its more enlightened members)’.Footnote ⁵⁵ Although it is difficult to establish what ‘the true aim’ of the Committee of 17 was, the instructions given to them highlight that the men were caught in a development that both emphasized the need for international law and challenged its core foundation as being state-centric.Footnote ⁵⁶ At the time, there was an overwhelming belief that a recurrence of the horrors of the Second World War could be prevented if only more clearly determined, defined, and agreed-upon rules of international law could be formulated.Footnote ⁵⁷ Yet, in light of the failures of the League of Nations Codification Conference held in 1930, many legal experts, including government representatives, were convinced that this project should not remain exclusively in the hands of states.Footnote ⁵⁸ In addition, and as becomes clear from the debates of the Committee of 17, the establishment of the United Nations put pressure on the traditional understanding of sovereignty.

While it is thus impossible to prove or refute Crawford’s conclusions about the true aim of the Committee, the summary records leave no room for doubt about mounting tensions. As the 17 men met during the heydays of the Cold War, it makes sense that the statements included in the summary records show suspicion about the intentions of other members. To a large extent, the disagreements that define the Committee of 17 ran along the East/West divide, with those of the Western bloc largely in favour of granting the future commission the power to initiate its own projects and the freedom to codify international law with limited government interference, whereas the representatives of states of the Eastern bloc were more hesitant to have independent experts draft restatement reports.

Because of these mounting tensions, and in many other ways, the summary records read like a play. Rather comical, for example, are the interventions of Donnedieu de Vabres. Not only was he repeatedly very persistent about the need to discuss the possibility of establishing an international criminal court, many points of order were also raised regarding his absolute right to insist on the French text of any document being distributed at the same time as the English text. Lengthy discussions were also held about the correct voting rules, with the English and French versions of the same rule stating the exact opposite.Footnote ⁵⁹ Accusations of violating the United Nations Charter and the principle of equality between nations were voiced,Footnote ⁶⁰ as well as complaints about meetings taking place in the morning.Footnote ⁶¹ It is this increasingly agitated group of ‘17’ men that debated the methods and procedures of the development and formulation of international law.

In the following three sections, I analyse their discussions on (Section 3) the role of legal experts, (Section 4) the definitions of, and the distinction between, progressive development and codification, and (Section 5) the difference between the method of conventions and the method of scientific restatements. In all three debates, the men emphasize the very thing they deny, whether it is the role of science in the development of international law, the possibility to distinguish between progressive development and codification, or the legal effect of non-binding draft conventions adopted by a resolution of the General Assembly. Rather than solving disagreements or attempting to achieve coherence, the Committee of 17 founded the International Law Commission through an embracing of uncertainty.

3. Legal experts, or ‘persons of recognized competence’

Before the members of C17 meet and during their first days together, multiple memoranda are submitted, and statements are made regarding the possible ways to codify and progressively develop international law. The idea of recommending the establishment of some kind of subsidiary organ to the General Assembly was featured in many of them. The proposals mention, for example, the need for ‘permanently operating codifying commissions’,Footnote ⁶² ‘a committee of jurists’,Footnote ⁶³ ‘eminent men’,Footnote ⁶⁴ ‘a committee of scholars’,Footnote ⁶⁵ ‘a fairly small codification commission consisting of international lawyers of the highest standing’,Footnote ⁶⁶ ‘a codification commission consisting of lawyers of international repute’,Footnote ⁶⁷ ‘persons of the highest prominence and attainments’,Footnote ⁶⁸ ‘the most competent experts’,Footnote ⁶⁹ ‘a body of great prestige’.Footnote ⁷⁰

By the Committee’s second meeting, the Chairman had already concluded that ‘there seemed to be a consensus of opinion that a committee of experts would be necessary’.Footnote ⁷¹ Many of the men explicitly stated that independent experts rather than government representatives would be suited for the task of progressively developing and codifying international law. Only Koretsky argued that entrusting the task to experts seemed ‘an imitation of the old custom of isolating those who had to determine the will of the people’.Footnote ⁷² In advancing their plans, the men do not seem to be occupied with theoretical considerations regarding the role of experts in the lawmaking process. For example, when Hsu argues in favour of establishing a commission of experts, he tells the other men of C17:

It is thus a group of government representatives that specifically sees a role for legal experts in developing international law: it is their ‘profession or interest’ rather than their current role as government representatives that expects them to move forward. Yet, it also seems to be their current role that enables them to move forward. As such, it follows from Hsu’s statement that what these government representatives can or cannot do is different from what is expected of legal experts, even though this is never explicitly mentioned.

Of course, a role for experts – as opposed to states or government representatives – in developing international law was not unheard of. By 1947, the Institut de Droit and the International Law Association – of which some of the men of C17 were also members – had been firmly established. In fact, the men who founded the Institut in 1873 had considered themselves to play a role in line with Savigny’s thinking that ‘learned jurists … have the sole control on the development of law’.Footnote ⁷⁴ However, unlike the men of 1873 who advanced the idea that ‘it was the task of legal science to capture and describe [international law] in its dynamism’,Footnote ⁷⁵ the men of C17 do not spend much time justifying or explaining the role of, or need for, experts. According to Donnedieu de Vabres, experts are ‘more detached in the view they take of their work’ than government representatives.Footnote ⁷⁶ Others instead emphasize the potential results of experts’ work without explaining how those results would be achieved. For example, codes prepared by a committee of scholars would have ‘undoubted moral force’, ^{Footnote 77} and a statement drafted by experts would create ‘better chances of agreement and give it “persuasive” authority’. ^{Footnote 78}

Only Special Rapporteur Brierly explicitly connects the importance of tasking experts to the task at hand. That is, according to him, ‘codification is, or should be, a scientific task’.Footnote ⁷⁹ It is to ensure that codification does not become political that independent experts ‘selected purely on their individual capacities and in no sense as representative of governments’ should be offered the task.Footnote ⁸⁰ The Soviet representative mocks this idea by referring to Brierly’s plan as ensuring ‘the “independence” of experts from their governments’. ^{Footnote 81} While Koretsky was the sole objector to recommending that the General Assembly set up a new committee – he argued that if not the General Assembly, C17 itself, composed of government representatives, could continue the workFootnote ⁸² – others also doubted the desirability of having ‘scientific lawyers’ carry out the task of progressively developing and codifying international law in isolation from governments.Footnote ⁸³

The proposal submitted by Brierly foresees the work of the experts merely to be published (‘with a suitable preface which would explain, inter alia, that the restatement was not binding’)Footnote ⁸⁴ and ‘to leave the further procedure open until it would be seen how successful the restatements produced in this manner were’.Footnote ⁸⁵ However, a majority of the Committee preferred to set up a system of two stages, in which the work of the experts would subsequently be discussed by government representatives. The Brazilian representative observed that ‘even these jurists shut up in an ivory tower … will be inclined to propose solutions resulting, to a great extent, from personal reflections’.Footnote ⁸⁶ Similarly, the Dutch representative doubted whether exclusively tasking experts ‘would yield the best possible results’, considering that ‘the political considerations of states, which the adherents of codification by experts intend to cut out’, could potentially find its way in ‘by devious means’.Footnote ⁸⁷ The Colombian representative argued that ‘many aspects of law are of a political order so that the final stage should be the task of government representatives’.Footnote ⁸⁸ Thus, while the British government may have wished to see the work of experts stand with merely persuasive authority, most of the men of C17 agreed with the Brazilian representative that the task could not ‘be achieved merely by the submission of learned opinions’.Footnote ⁸⁹ As he explained, having the experts routinely collaborate with political authorities should not be understood to mean that the jurists would be tasked to solve political problems, but rather that they are obliged to take them into account ‘in order that their work may be effective’.Footnote ⁹⁰

During this discussion, the men disagreed on whether it is possible to distinguish between the political and the scientific in international law and whether or not it is possible to have a commission of experts acting independently of their respective states. As such, it is worth repeating that all of the above statements were uttered by legal experts who, at the time, were themselves acting as government representatives. They did not, however, consider themselves to be unsuited to take a seat on the commission they would recommend to the General Assembly. Donnedieu de Vabres argued that ‘for example, professor Brierly, as an expert elected [to the commission], could very well succeed professor Brierly, the representative appointed by the United Kingdom Government [to the Committee of 17]’. ^{Footnote 91} One may wonder how Brierly would distinguish between these two personas. We cannot expect one to have more expertise than the other, so the difference would have to be found in Brierly’s behaviour. Logically, Brierly, as a government representative, would be inclined to take his own government’s interests into account, whereas an independent expert Brierly would not. Thus, if one were to ask government representative Brierly to state the existing law, he would formulate the law as it is according to the United Kingdom. Independent expert Brierly, on the other hand, is expected to state what the law is, regardless of any government’s interests. In other words, we may think of Brierly as acting politically as a government representative and scientifically as an independent expert. In light of this, and since codification is said to be a scientific task, it seems highly relevant to distinguish between the roles of independent experts and government representatives. Yet, according to some members of C17, one person can fulfil both roles, even at the same time.

By the end of their seventh meeting, the men unanimously agreed that ‘the GA should establish a single commission for the purpose of carrying out the progressive development of international law and its eventual codification’.Footnote ⁹² After this decision had been made, the question arose whether the commission should be operating on a part- or full-time basis. On this matter, the Committee was split.Footnote ⁹³ Some argued that a full-time basis was necessary if the work ‘were to be effective and terminated speedily’Footnote ⁹⁴ or ‘to acquire the most qualified persons’.Footnote ⁹⁵ Others had argued instead that ‘legal experts of outstanding reputation’ might hesitate to accept an appointment which would prevent them from doing other work,Footnote ⁹⁶ and that ‘some countries would not be in a position to do without the services of their best specialists’.Footnote ⁹⁷ Brierly, who had strongly emphasized the need of independence to ensure that codification would be scientific rather than political,Footnote ⁹⁸ now argued that the members should not render a full-time service because this ‘would deter the most eligible candidates from serving on the commission, as they could not be spared in their own country’.Footnote ⁹⁹ This, of course, problematizes the strict distinction Brierly had drawn between ‘political’ and ‘scientific’; ‘independent expert’ and ‘government representative’.

Despite their disagreements, the men ultimately came to the understanding that the future commission would have to enjoy the highest prestige. According to Hsu, the provisional name of the commission, ‘Commission of Experts in International Law’, was inadequate because ‘the word “experts” denoted persons of rather low rank’, and so should be avoided.Footnote ¹⁰⁰ After other proposals had been rejected, Brierly’s suggestion to name the future commission the ‘International Law Commission’ was accepted with nine votes in favour and none against.Footnote ¹⁰¹ Nearly two weeks later, the summary records note that Koretsky expressed doubts about the use of the word ‘experts’ to refer to those serving on the ILC. He proposed to use the words employed for the Judges of the International Court of Justice instead.Footnote ¹⁰² There are two reasons listed for this: the Committee would be recommending an election procedure for the members of the ILC similar to that of the judges of the Court, and the word ‘experts’ was already used for persons that would be consulted from outside of the ILC. After a brief discussion, the Committee agreed to replace the term ‘experts’ by ‘the words used in Article 2 of the statute of the International Court of Justice: “persons of recognized competence in international law”’.Footnote ¹⁰³

As a result, the men of C17 placed the ‘independent experts’ of the International Law Commission on the same footing as the judges of the International Court of Justice, effectively creating a similar kind of authority and prestige for (individuals elected to) the ILC. However, as pointed out by the Swedish representative, it is only for the judges of the International Court of Justice to state which is the content of existing international law, not for the members of the ILC.Footnote ¹⁰⁴ So the International Law Commission would be a commission of experts – very special ones, as competent as judges – yet should not be a scientific academy, and should not merely (re)state existing international law. At the same time, the independent experts cannot make new law: they are not states nor government representatives, yet they are allowed to work for their government whilst they act independently on the ILC.

This consistent incoherence is not just the result of a disagreement among the different members. It follows from the fact that what is persistently emphasized (the scientific aspect of international law) is simultaneously and explicitly denied by the same members (the role of science in developing international law). As a result, it is the political element of international law, as opposed to its scientific element, that is continuously on display.

4. Progressive development and codification

In the same breath that Brierly professed a commission of independent experts would have to be established, he ‘emphasized the necessity of keeping distinct the task of the progressive development of international law and its codification’.Footnote ¹⁰⁵ For Brierly, as mentioned above,

It is important to emphasize that Brierly is in favour of establishing only one commission, meaning that the ‘distinct task of progressive development’ – which Brierly does not argue to be scientific – would also be undertaken by independent experts rather than government representatives. Many of the men, however, disagree with Brierly’s distinction. They argue that progressive development and codification form a ‘dual task’Footnote ¹⁰⁷ that is best ‘undertaken in unity’.Footnote ¹⁰⁸ Distinguishing between the two tasks is said to be hardly possible in practiceFootnote ¹⁰⁹ because the two are closely connected;Footnote ¹¹⁰ influence one another;Footnote ¹¹¹ overlap;Footnote ¹¹² are complementary;Footnote ¹¹³ are really one.Footnote ¹¹⁴ Even if it were possible, doing so would be undesirable because existing international law should be accompanied by new legislation;Footnote ¹¹⁵ codification should not be a mere restatement but also lay down new rules;Footnote ¹¹⁶ efforts should be made to fill the gaps by legislation;Footnote ¹¹⁷ codifiers should be free to say that they find that essential parts are lacking and must be free to propose necessary solutions.Footnote ¹¹⁸ Even Brierly himself admits that codification necessarily involves correcting inconsistencies in existing rules and filling of lacunae,Footnote ¹¹⁹ and that, therefore, ‘the distinction between [progressive development] and codification cannot be a strictly scientific one’.Footnote ¹²⁰

Still, Brierly concludes that ‘the distinction is broadly true’.Footnote ¹²¹ According to him, progressive development of international law refers to the task of laying down new rules, a necessarily political matter (that he, nonetheless, argues should be undertaken by the independent experts of the future ILC). Because codification primarily dealt with existing law, it could be said to be more scientific than political. This claim was also not undisputed: the representative for Yugoslavia found codification to be political precisely because it focuses on the practice of states, which is ‘a political matter’.Footnote ¹²² Similarly, the representative for Poland observed that the work ‘was not photographic, it would not just copy existing international law, but creative’ and as such, could not be considered purely scientific.Footnote ¹²³ This shows that the men had fundamentally different ideas about what it means to formulate the rules of international law. Moreover, these different ideas largely correlated with the different political ideologies of the represented states.Footnote ¹²⁴

After a few repetitive meetings during which nothing much gets done, the Chairman suggests formulating precise questions to bring order into the discussions. One of these questions was whether ‘a distinction [should] be made between the development of international law and codification’.Footnote ¹²⁵ The Dutch representative proposes to discuss at the same time ‘whether or not the two problems should be separated’.Footnote ¹²⁶ In response, the Secretary of the Committee made clear that ‘it would be unnecessary to decide upon an academic distinction between development and codification. If a distinction is to be decided upon, the distinction should be in terms of methods’.Footnote ¹²⁷ The next day, the Chairman reopened the discussion by reading out the following question: ‘Should a distinction be drawn and a separation be made between the methods for the development of international law and its codification?’Footnote ¹²⁸ As a first response, the Polish representative observed that this question could not be answered ‘by a single yes or no’ because it was really composed of two questions to which different answers could be given:

The men, however, do neither. They do not proceed to a vote and also do not discuss the possibility of distinguishing between developing and codifying law. Instead, Brierly states that there is ‘some misunderstanding in the Committee as to the meaning of the terms “development of international law” and “codification”’.Footnote ¹³⁰ Rapporteur Brierly is offered the stage again to explain to the other men the ‘correct’ meaning of the two terms. He tells them that there are many ways of progressively developing international law. In the memorandum prepared for the Committee by the Secretariat, progressive development is divided into methods for (i) encouraging international legislation, (ii) encouraging the development of customary international law, and (iii) encouraging the development of international law through the judicial process.Footnote ¹³¹ In this perspective, laying down new rules is just one way of progressively developing the law, and therefore, codification and progressive development cannot be the same. The other men, however, had been arguing that ‘international legislation’ (which they understood progressive development to mean, and this is also how they will define it in their final report to the General Assembly, to which I will return later) cannot be distinguished or separated from codification. From Brierly’s explanation it seems that there is no misunderstanding at all. Brierly repeats in his own words what had already been said by others: ‘codification, if competently effected, would entail the laying down of new rules, which is a legislating activity’.Footnote ¹³² Compare this, for example, to what Koretsky had asserted a few days earlier: ‘codification was not only registering what exists but more, the noting of what had been done, the cleansing of existing law of its errors and the proceeding to the laying down of new rules’.Footnote ¹³³

Thus, the men of C17 seem to agree that ‘progressive development’, i.e., ‘international legislation’, cannot be strictly separated from codification. However, Brierly maintains that there are other methods to progressively develop international law, and that the Committee should thus make a distinction. Still, as pointed out before, Brierly argues for a single commission (of independent experts) to be tasked with both codification and progressive development. Thus, when it is mentioned that codification is a task for experts, which is different from the task of development, which ‘might be entrusted to political instead of legal experts’,Footnote ¹³⁴ this is not further discussed. A majority of the Committee prefers one rather than two commissions – whether of independent experts or political representatives – so they recommend the General Assembly to establish a single commission.

In doing so, the men also decide not to make a separation between progressive development and codification. That is, not in terms of the number of commissions or in the individuals responsible for the task. Whether or not a distinction can be made is more complicated. As the Polish representative pointed out, they cannot decide a theoretical question by voting. So, rather than further discussing the meaning of the terms ‘codification’ and ‘progressive development’, the men move on to methods. However, after discussing the methods (to which I turn in the next section), the Committee is summarizing its discussions and recommendations in a report to be sent to the General Assembly. As they try to come up with definitions, the men stumble upon their disagreement regarding the meaning of the two terms again. They had never formally decided that there was a clear distinction between codification and progressive development, let alone agreed to one.

In a joint proposal, the delegates of China and the US suggested defining codification as ‘the more precise formulation of law in areas where there has been extensive state practice, precedent and doctrine’; and progressive development as ‘the extension of law to new areas not yet regulated by law or in which the law has not yet been highly developed or formulated in the practice of states’.Footnote ¹³⁵ Koretsky is unhappy with the definition of codification (‘absolutely inadequate’)Footnote ¹³⁶ and suggests that the Committee’s final report instead mentions ‘systematization of the standards of international law in specified areas thereof’.Footnote ¹³⁷ Note that Koretsky’s definition makes no reference to existing rules or practice. In response,

Reading the summary records, however, it is difficult to pinpoint when the Committee had established this distinction. While Koretsky questioned the definitions when they were first introduced, the Committee never discussed them.Footnote ¹³⁹ It was only insisted that ‘there was a great difference between the development and the codification of international law’.Footnote ¹⁴⁰ Yet, as pointed out at the beginning of this section, a majority of C17 was of the opinion that there would always be a connection between developing and codifying international law: ‘distinguishing between the two tasks is said to be hardly possible in practiceFootnote ¹⁴¹ because the two are closely connected;Footnote ¹⁴² influence one another;Footnote ¹⁴³ overlap;Footnote ¹⁴⁴ are complementary;Footnote ¹⁴⁵ are really one’.Footnote ¹⁴⁶ Besides, when the Committee discussed the draft Declaration on the Rights and Duties of States, the men themselves experienced the difficulty of making a distinction between codification and progressive development, as the question whether the draft referred to existing law only or also contained new law remained unanswered.Footnote ¹⁴⁷

In spite of this, the representative of the United States continues his statement above by claiming ‘that codification could only deal with positive law and not with law as it should be’.Footnote ¹⁴⁸ This is far from how the men defined codification when they first discussed the possibility of making a separation or distinction. Jessup himself even voices conflicting statements about what it means to codify in a matter of minutes. He first implies that codification is to be practised in areas of international law where state practice exists (which presumably would include laying down new rules), whereas his second statement limits codification to restating positive law only. Here – at the request of another Committee member and in the context of Koretsky’s objection – he suddenly makes a strict distinction between codification (as dealing only with lex lata) and progressive development.

After Jessup’s latter assertion, the Committee moved on, with Koretsky mentioning that he would raise the matter again when the Committee would discuss its final report. Nine days later, the Chairman opens the discussion on the paragraph in Brierly’s draft report that attempts to define the two terms, which reads:

It is Bartos, the representative for Yugoslavia, who mentions that the words ‘and systematization’ should be inserted after ‘formulation’; it is Sjoborg, from Sweden, who wishes that the report notes that he distances himself from the definitions altogether; Koretsy remains silent.Footnote ¹⁵⁰ Perhaps fearing a repetition of the disagreement, the Chairman not only opened the discussion on the paragraph above, but also called attention to a later paragraph meant to clarify the first, which reads:

The two paragraphs are accepted without further discussion.Footnote ¹⁵² Thus, in its final report, the Committee both defines codification and progressive development as distinct from one another and simultaneously recognizes that the two terms are not mutually exclusive at all. The offered definitions are ‘for convenience of reference’ only. They are convenient indeed: they make it possible for the Committee to propose distinct procedures for codification and progressive development, even though the report admits – in advance and explicitly – that maintaining the distinction would be impossible in practice. Here, again, what is emphasized is simultaneously denied.

5. Conventions or restatements

As mentioned in the preceding paragraphs, the Secretariat’s memorandum made a distinction between ‘progressive development’ and ‘codification’ in terms of methods. The Secretariat argued that for progressive development, ‘one of the most fruitful methods … is to extend the area of “law-governed matters” through the conclusion of international conventions’.Footnote ¹⁵³ The memorandum mentioned two ‘methods’ for encouraging the eventual codification of international law: (i) international conventions; (ii) restatements of international law. ^{Footnote 154} While it is stated in the memorandum that the convention method ‘has many drawbacks when it is considered as a method for securing international agreement on general rules and principles of international law’, the memo does not ‘suggest that the preparation of scientific restatements should serve as an alternative to international conventions as a method of codification’.Footnote ¹⁵⁵ The ‘method’ of scientific restatements is instead presented as a ‘useful preliminary step’.Footnote ¹⁵⁶

From the moment C17 broached the topic of methods, Koretsky made clear that all United Nations’ organs should use only one: international conventions. From his perspective, the same method should be used for the progressive development of international law and codification. ‘The United Nations [is] not a scientific organization, and it must lay down definite rules in multilateral conventions.’Footnote ¹⁵⁷ According to Koretsky, ‘legality demands precise legal forms’,Footnote ¹⁵⁸ and ‘there could hardly be a more perfect legal form in international law than an international treaty’. ^{Footnote 159} Whereas Brierly, as we have seen in the previous section, argues that there is a distinction to be made between progressive development and codification, both tasks, according to Koretsky, have to end in a convention: there is no difference that would justify the use of different methods.Footnote ¹⁶⁰ For Brierly, however,

Needing an alternative to the convention method which has proven to be unsatisfactory, Brierly suggests to recommend the restatement method for the codification of international law instead, which would have considerable persuasive authority though lack imperative force:Footnote ¹⁶² ‘its influence on governments or courts was dependent upon its scientific merits only’.Footnote ¹⁶³ In other words, Brierly suggests a codification method that does not require states’ explicit acceptance or signature. He argues for introducing ‘an interval of time’ to see how successful a restatement would be, after which it could be decided to ‘leave the restatement to stand with merely persuasive authority’, submit it to the General Assembly for approval by resolution or have it be concluded as a convention between member states.Footnote ¹⁶⁴ Similarly, the Dutch representative argued that ‘either the General Assembly or an international conference accepted the restatement as it stood, or else the Assembly rejected it, in which case the restatement would not become binding’.Footnote ¹⁶⁵ According to him, even a rejected restatement would have the advantage of contributing to custom. However, no government would find itself bound by a majority vote. Or, in the words of Jessup,

The representative of Australia also agreed that conventions were not the only source of international law.Footnote ¹⁶⁷ Still, the Polish representative argued that, following the UN Charter, scientific restatements could not be given binding force or even semi-official validity.Footnote ¹⁶⁸ In response, the representative of China stated that ‘the United Nations Charter accepted the majority principle for the General Assembly. Advantage should be taken of this, even if it meant a certain risk’.Footnote ¹⁶⁹ The representative of Yugoslavia cautions the men of C17:

At last, the men refer to the system within which the International Law Commission and its output would someday have to fit. And yet, the legal experts disagree on what that system exactly requires or (dis)allows. Since a majority of the men had expressed the opinion that the future commission’s output would have to be signed and ratified by states to become legally binding on the signatories, Koretsky concludes that ‘all the delegates appeared to admit that the method of conventions and multipartite treaties was best’.Footnote ¹⁷¹ He suggests appointing a subcommittee of members who had expressed different tendencies so that it could ‘endeavour to find a compromise solution’.Footnote ¹⁷² A few days later, the subcommittee presents the following text:

Although the Committee unanimously adopts the text, the men immediately disagree about its meaning. According to Koretsky, the General Assembly would decide the matters with which the ILC could deal; Brierly and the others had been of the view that the ILC would itself decide what topics were fit for codification. Similarly, the subcommittee is divided over whether or not their recommendation meant that the same procedure should be followed for the codification of international law and its progressive development. According to the summary records, ‘the delegates of the USSR and of Sweden maintained that the text referred both to codification and to development, while the delegates of Brazil, and the UK, and the Secretary of the Committee held the opposite view’.Footnote ¹⁷⁴ They remain divided, with different translations of the text apparently leading to different conclusions. However, knowing that Koretsky will only accept the convention method, Brierly asks him, ‘would he not have to have a draft before his convention could be concluded, and would this draft be anything very different from what I am calling a restatement of the law?’Footnote ¹⁷⁵ After the difference between the two positions is presented as a matter of words only, C17 unanimously agrees that the future commission would ‘present its recommendations to the General Assembly … in the form of drafts of multipartite conventions’.Footnote ¹⁷⁶ It is important to highlight that this decision (as well as much of the discussion so far) is about form rather than method. Even if all of the men of C17 are willing to go along with Koretsky’s emphasis on the form of the output of the ILC needing to be draft (articles of) multipartite conventions, they disagree on (i) the method to arrive at such a draft convention, and (ii) the method to finalize the output of the ILC, i.e., that which comes after the preliminary stage.

Thus, while Koretsky may have gotten what he wanted – the work of the ILC would finish in a draft convention – Brierly did too – different procedures (or methods) were set out for codification and progressive development, with governments being included far less in the former than in the latter process. The amount of times governments should be consulted in the codification process was an important point of contention. Koretsky wanted the future commission to consult governments as often and extensively on codification drafts as all others.Footnote ¹⁷⁷ According to him, observations from governments would always be necessary because ‘scientists were never perfect’ so that the work of the commission could not be expected to be perfect either, and consulting governments might even accelerate the procedure. ^{Footnote 178} Others argued that no consultation during the codification process was necessary because the General Assembly had no legislative powers, and ‘would only perform the final task in the preparation of international conventions which would be signed at international conferences composed of government delegates’.Footnote ¹⁷⁹

As pointed out in Section 3 above, a majority of the Committee saw value in setting up a system of two stages. According to Brazilian representative Amado, for example, there was a ‘necessity of consulting the governments right at the beginning of the codification procedure and regularly during its various stages’.Footnote ¹⁸⁰ Doing so, Amado thought, might positively impact the number of ratifications that the conventions would receive. Thus, it was decided, with seven votes in favour, six against, and three abstentions, that codification drafts would be presented to governments before they were submitted to the General Assembly.Footnote ¹⁸¹ However, during one of their final meetings, Donnedieu de Vabres comes back to this decision and suggests to mention in the report that governments should be requested to give their opinion at the beginning stage of a codification project, so that they could not impede the work by expressing their objections only at the end. ^{Footnote 182} Jessup prefers to simply delete the request for governments’ comments altogether because the work of codification is ‘primarily legal and scientific, not political’. ^{Footnote 183} If the men of C17 were to accept these suggestions, there would be no involvement of governments in the process of codification; it would be left entirely to the ILC. The men repeat their previous disagreement: those who do not consider codification to be purely scientific argue that governments have the right to give their ‘undoubtedly necessary’ opinions on the drafts, ^{Footnote 184} and even if the work was scientific, ‘the governments would want to consult also the scientists outside the ILC’. ^{Footnote 185} Bartos concludes that deleting the request for comments

Donnedieu de Vabres accuses Bartos of reopening the whole problem, noting that his ‘arguments would be to the point only if there was really a question of international legislation being envisaged, however, such was not the case. The work of the ILC would always finish in a draft convention’.Footnote ¹⁸⁷

But would it? A majority of the Committee is in favour of including in its report multiple recommendations the future commission could make to the General Assembly regarding a final codification draft. In relation to progressive development, no recommendations are spelled out. Regarding codification, however, the final report of the Committee foresees four possibilities:

1. a) That no further action be taken in view of the fact that the report has already been published, or

2. b) That the General Assembly should adopt all or part of the report by resolution, or

3. c) That the General Assembly should recommend the draft to States for the conclusion of a convention, or

4. d) That the General Assembly should convoke a special conference to consider the conclusion of a convention.Footnote ¹⁸⁸

Again, Koretsky protests: according to him, this proposal was contrary to the decision that all recommendations would be in the form of a multipartite convention.Footnote ¹⁸⁹ Importantly, however, the form of the output of the future commission would remain the same no matter what the General Assembly would subsequently do with it. Hence, Hsu argues that the General Assembly ‘could do whatever it wished: even a mere recommendation … would give enormous prestige to a restatement on any subject of international law’.Footnote ¹⁹⁰ When Koretsky asks what its prestige could be if it were not laid down in a convention binding on states, Hsu replies that he, too, would be happier if the drafts would be turned into international conventions. ‘However, if it should prove that only a majority of the member states would want a convention on any subject and that no unanimity could be achieved, a majority resolution would still be very useful.’Footnote ¹⁹¹ In response to a point of order raised by Koretsky that the question had already been decided and that all recommendations to the General Assembly should be worked out in the form of a multipartite convention, the Assistant-Secretary General shares his opinion: if a report would always contain the draft of a multipartite convention, there was a gradation in points a to d with point b meaning ‘action of a lesser degree’: the ultimate aim would always remain the conclusion of a convention.Footnote ¹⁹² Put differently, the form of the output of the future commission would always be a draft multipartite convention, both in projects of progressive development and of codification. Yet, the method to reach that output, as well as the method to subsequently deal with that output, differs, leading to different procedures for codification and progressive development.

As we know, Koretsky and Brierly feel differently about the desirability of this procedure. However, if we take a closer look at the speeches made by Koretsky and Brierly, what they consider to be (im)possible is not all that different. Koretsky claims that the rules resulting from the work of codification may become generally obligatory, but only through the method of concluding multilateral conventions. ^{Footnote 193} He makes clear that ‘there must be no enforcement of the adoption of standards laying down rules for the conduct of states in the future, against the will of any states. … [N]o laws must be established for them without their volition’.Footnote ¹⁹⁴ He reminds the men that the United Nations is not a ‘super-state legislative body’, which he proves by the defeat of a San Francisco proposal to grant the General Assembly authority to legislate.Footnote ¹⁹⁵ Similarly, Brierly argues that

In addition, Brierly agrees with Koretsky that conventions are ideal and would be better and more satisfactory than a restatement. That is because Brierly considers such restatements to have ‘considerable persuasive authority’ but no ‘actual authority’.Footnote ¹⁹⁷ What is interesting is that Koretsky actually makes a similar argument. In his speech, Koretsky makes a distinction between scientific restatements prepared by learned institutions and those prepared by an organ of the United Nations, such as the proposed International Law Commission. According to the Soviet delegate, restatements prepared by learned institutions promote the work of codification because they facilitate the preparation of draft conventions. However, if the UN acts similarly, something else happens:

In other words, ‘informal compilations’, ‘non-legal forms’ or ‘imprecise legal forms’ prepared by an organ of the UN could have a similar effect (misleading or not) as ‘real codification’. While Koretsky clearly considers this to be undesirable, he does not seem to consider it impossible, no matter how often he reminds the other men that the UN is not a super-state, that only states can make law or that ‘restatements would lead to no results’.Footnote ¹⁹⁹ Indeed, Koretsky later argues that ‘special authority [to publish the drafts] from the General Assembly would be superfluous and might even be undesirable as it could be interpreted as giving additional weight to the drafts’. ^{Footnote 200} Whereas the first part of this sentence seems to suggest that a General Assembly resolution does not ‘do’ anything (it would be superfluous), the latter part reveals that there is always a possibility that it could: it may be interpreted as giving additional weight. Thus, even though Koretsky is convinced that the General Assembly does not have the power to legislate, he realizes that a resolution adopted by the General Assembly could possibly have legal effect. Similarly, Bartos asserts that conventions prepared by the ILC ‘even if they were not signed by all the governments, would always have a great authority’.Footnote ²⁰¹ Sjoborg argues for an increase in the commission’s membership so that the reports adopted by the General Assembly ‘might have the greatest authority possible’,Footnote ²⁰² even though he considers the convention method to be the only possible one.

What this shows is that the men realize that while scientific restatements are not legally binding – they are ‘no more than a subsidiary means’ per the statute of the ICJ – the proposed procedure will nevertheless have some legal effect. Here, too, the men emphasize and deny the same thing at the very same time: the legal authority of a non-binding draft convention. Whereas the opponents of the new approach consider this authority to be undesirable, Brierly and some others find it very appealing. Importantly, however, no one argues that restatements drafted by experts are, or should become, legally binding. Rather, to paraphrase Brierly, a slice of cake is preferable to having no cake at all. ^{Footnote 203} Put differently, the Committee created an ambiguous procedure. In doing so, and in combination with maintaining the impossible distinctions between progressive development and codification, and between government representatives and independent experts, the men found the International Law Commission on an embracing of uncertainty.

6. Concluding remarks

On a Tuesday afternoon in June 1947, 19 menFootnote ²⁰⁴ meet at Lake Success, New York. For a little over a month, they searched for the International Law Commission. The summary records of their meetings are reminiscent of the play ‘Six Characters in Search of an Author’, which centres around six ‘characters’ – meaning that they are conceived by the imagination of a writer – whose drama in which their raison d’être resides remains unwritten. Luigi Pirandello, the author of the play, confessed that he deliberately denied the characters their reason for existence:

Instead of writing his characters their much-needed play, Pirandello imagines the characters into existence only to have them search for a different author, for a different play. As he explains, the characters have been given ‘another raison d’être than their own, another function … which consists of being turned down and in search of an author’.Footnote ²⁰⁶ In playing with the real (the actors) and the apparent (the characters), Pirandello shows that the distinction between the two (real/apparent and actor/character) is an illusion. As such, the play invariably creates doubt and confusion, both in the minds of the characters, the actors and the audience.

Similarly, the men of C17 – caught in a development that both emphasized the need for international law and challenged its core foundation as being state-centric – were forced to search for another Commission in which they – government representatives – could find another play, could play another role.Footnote ²⁰⁷ As demonstrated throughout this article, the men prove that distinctions – between independent experts and government representatives, between codification and progressive development, between conventions and scientific restatements – are illusory. Rather than attempting to solve the problems that maintaining these distinctions creates, the men embrace – utilize even – the uncertainty that comes with them in order to find/found the Commission. As a result, the International Law Commission persistently struggles with its function (‘nothing less than the “impossible” situation’Footnote ²⁰⁸ ).

This article aimed at making sense of the International Law Commission, its struggle with itself, and the discourse surrounding the institution in a new way. Doing so would require looking differently and elsewhere. In light of this, the intervention presented in this article employs a combination of literary, socio-legal, and historical methods, and traces the observation that the ILC is self-aware and its members often publicly critical back to the debates that established the Commission. The focus on these debates follows from the understanding that they can offer a new perspective, that of the past’s imagined future. From this perspective, we are able to see our present differently, thereby bringing new understandings to the fore. As the analysis ultimately reveals, the process of founding the Commission is characterized by incoherence, maintaining impossible binaries and deferring a substantive resolution of the problems this creates elsewhere. The conclusion that the International Law Commission was founded on an embracing of uncertainty not only makes it possible to make sense of the International Law Commission in a new way – implying that the institution is not in a (forever) crisis but that its uncertainty and ambivalence towards itself are structural – it can also be understood as an illustration of international law’s indeterminacy, thereby challenging traditional understandings of international law(making). As such, the intervention adds to discussions on international law’s theory and practice without seeking to reconcile contradictions or trying to achieve coherence.

In other words, or in conclusion, members of the International Law Commission as well as those observing from the sidelines will likely continue discussing and trying to solve whatever problem comes up in its work. The men of C17 show that one can always opt to embrace uncertainty if faced with impossibilities. In addition, we learn from Pirandello that even a function that is impossible can be a ‘real reason for being, and a sufficient cause for existence’.Footnote ²⁰⁹