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Introduction
Origin and background of the development and codification of international law 1. Historical antecedents (top) The idea of developing international law through the restatement of existing rules or through the formulation of new rules is not of recent origin. In the last quarter of the eighteenth century Jeremy Bentham proposed a codification of the whole of international law, though in a utopian spirit. [1] Since his time, numerous attempts at codification have been made by private individuals, by learned societies and by Governments. Enthusiasm for the “codification movement” — the name sometimes given to such attempts — generally stems from the belief that written international law would remove the uncertainties of customary international law by filling existing gaps in the law, as well as by giving precision to abstract general principles whose practical application is not settled. While it is true that only concrete texts accepted by Governments can directly constitute a body of written international law, private codification efforts, that is, the research and proposals put forward by various societies, institutions and individual writers, have also had a considerable effect on the development of international law. Particularly noteworthy are the various draft codes and proposals prepared by the Institut de Droit International, the International Law Association (both founded in 1873) and the Harvard Research in International Law (established in 1927), which have facilitated the work of various diplomatic conferences convened to adopt general multilateral conventions of a law-making nature. [2] Intergovernmental regulation of legal questions of general and permanent interest may be said to have originated at the Congress of Vienna (1814-15), where provisions relating to the regime of international rivers, the abolition of the slave trade and the rank of diplomatic agents were adopted by the signatory Powers of the Treaty of Paris of 1814. Since then, international legal rules have been developed at diplomatic conferences on many other subjects, such as the laws of war on both land and sea, the pacific settlement of international disputes, the unification of private international law, the protection of intellectual property, the regulation of postal services and telecommunications, the regulation of maritime and aerial navigation and various other social and economic questions of international concern. [3] Although many of these conventions were isolated events dealing with particular problems and in some cases applied only to certain geographic regions, a substantial number of them resulted from a sustained effort of Governments to develop international law by means of multilateral conventions at successive international conferences. The protection of industrial property, for instance, has been the subject of successive conferences held since 1880, and the Paris Convention on the subject, first adopted on 20 March 1883, has been progressively revised six times and amended once. Similarly, the codification of international law contained in the four Geneva Conventions of 12 August 1949 regarding the protection of war victims and in the Protocols Additional to the Geneva Conventions of 8 June 1977 [4] is the direct descendant of the Geneva Red Cross Convention of 22 August 1864. The Hague Peace Conferences of 1899 and 1907, drawing upon the work and experience of preceding conferences on the laws of war and upon the previous practice of some Governments regarding the pacific settlement of international disputes, reached agreement on several important conventions and thus greatly stimulated the movement in favour of codifying international law. The Second Peace Conference of 1907, however, feeling the lack of adequate preparation for its deliberations, proposed that some two years before the probable date of the Third Peace Conference, a preparatory committee should be established “with the tasks of collecting the various proposals to be submitted to the conference, of ascertaining what subjects are ripe for embodiment in an international regulation, and of preparing a programme which the Governments should decide upon in sufficient time to enable it to be carefully examined by the countries interested”. [5] Arrangements for the Third Peace Conference were being made when the First World War broke out. 2.
The intergovernmental effort to promote the codification and development of international law made a further important advance with the resolution of the Assembly of the League of Nations of 22 September 1924, envisaging the creation of a standing organ called the Committee of Experts for the Progressive Codification of International Law, which was to be composed so as to represent “the main forms of civilization and the principal legal systems of the world”. [6] This Committee, consisting of seventeen experts, was to prepare a list of subjects “the regulation of which by international agreement” was most “desirable and realizable” and thereafter to examine the comments of Governments on this list and report on the questions which were “sufficiently ripe”, as well as on the procedure to be followed in preparing for conferences for their solution. This was the first attempt on a worldwide basis to codify and develop whole fields of international law rather than simply regulating individual and specific legal problems. After certain consultations with Governments and the League Council, the Assembly decided, in 1927, to convene a diplomatic conference to codify three topics out of the five that had been considered to be “ripe for international agreement” by the Committee of Experts, namely: (1) nationality, (2) territorial waters and (3) the responsibility of States for damage done in their territory to the person or property of foreigners. [7] The preparation of the conference was entrusted to a Preparatory Committee of five persons which was to draw up reports showing points of agreement or divergency which might serve as “bases of discussion”, but not to draw up draft conventions as had been proposed by the Committee of Experts. Delegates from
forty-seven Governments participated in the Codification Conference
which met at No further
experiment in codification was made by the 3. Drafting and implementation of Article 13, paragraph 1, of the Charter of the United Nations (top) The Governments participating in the drafting of the Charter of the United Nations were overwhelmingly opposed to conferring on the United Nations legislative power to enact binding rules of international law. As a corollary, they also rejected proposals to confer on the General Assembly the power to impose certain general conventions on States by some form of majority vote. There was, however, strong support for conferring on the General Assembly the more limited powers of study and recommendation, which led to the adoption of the following provision in Article 13, paragraph 1: [10] “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.” During the second part of its first session, the General Assembly, on 11 December 1946, adopted resolution 94 (I) E, F, S, R, C) establishing the Committee on the Progressive Development of International Law and its Codification, sometimes known as the “Committee of Seventeen”. The Committee was directed to consider the procedures to be recommended for the discharge of the General Assembly’s responsibilities under Article 13, paragraph 1. The Committee held thirty meetings from 12 May to 17 June 1947 and adopted a report recommending the establishment of an international law commission and setting forth provisions designed to serve as the basis for its statute. [11] Several important questions of principle relating to the organization, scope, functions and methods of an international law commission were thoroughly discussed by the Committee. Some members of the Committee saw no marked distinction between the progressive development of international law and its codification. In both cases, they observed, it would be necessary to conclude international conventions before the results were binding on States. Most of the other members, however, thought that there were differences of a substantive nature between codification and progressive development, although there were divergencies in the emphasis they placed on one or the other of the two concepts. As to the composition of an international law commission, the majority of the Committee favoured the idea that members should not be representatives of Governments but rather should serve in their individual capacities as persons of recognized competence in international law. While some members of the Committee stressed the scientific and non-political nature of the work to be performed by the proposed commission, the majority of the Committee took the view that the work of the commission should always be carried out in close cooperation with the political authorities of States and that actions in respect of the drafts prepared by the Commission should be decided upon by the General Assembly. During the second session of the General Assembly, a large majority of the Sixth (Legal) Committee [12] favoured the setting up of an international law commission, and a draft Statute of the International Law Commission was prepared by a subcommittee of the Sixth Committee. [13] On 21 November 1947, the General Assembly adopted resolution 174 (II) (E, F, S, R, C), establishing the International Law Commission and approving its Statute. Since then, the Statute has been amended by six further resolutions of the General Assembly, adopted partly on the initiative of the Commission and partly on that of Governments. [14] In accordance with the relevant provisions of the Statute (articles 3 to 10), the first elections to the International Law Commission took place on 3 November 1948, and the Commission opened the first of its annual sessions on 12 April 1949 Organization, programme and methods of work of the International Law Commission (top) 1. Object of the Commission (top) Article 1, paragraph 1, of the Statute of the International Law Commission provides that the “Commission shall have for its object the promotion of the progressive development of international law and its codification”. Article 15 of the Statute makes a distinction “for convenience” between progressive development as meaning “the preparation of draft conventions on subjects which have not yet been regulated by international law or in regard to which the law has not yet been sufficiently developed in the practice of States” and codification as meaning “the more precise formulation and systematization of rules of international law in fields where there already has been extensive State practice, precedent and doctrine”. In practice, the Commission’s work on a topic usually involves some aspects of the progressive development as well as the codification of international law, with the balance between the two varying depending on the particular topic. [15] Although the drafters of the Statute envisaged that somewhat different methods would be used in regard to progressive development, on the one hand, and codification, on the other, they thought it desirable to entrust both tasks to a single commission. Furthermore, they did not favour proposals for the setting up of separate commissions for public, for private and for penal international law. Thus article 1, paragraph 2, of the Statute states that the Commission “shall concern itself primarily with public international law, but is not precluded from entering the field of private international law”. For more than fifty years, however, the Commission has worked almost exclusively in the field of public international law. In 1996, the Commission noted that in recent years it had not entered the field of private international law, except incidentally and in the course of work on subjects of public international law; moreover, it seemed unlikely that the Commission would be called upon to do so having regard to the work of bodies such as UNCITRAL and the Hague Conference on Private International Law. [16] In contrast, the Commission has worked extensively in the field of international criminal law, beginning with the formulation of the Nürnberg principles and the consideration of the question of international criminal jurisdiction at its first session, in 1949, and culminating in the completion of the draft Statute for an International Criminal Court at its forty-sixth session, in 1994, and the draft Code of Crimes against the Peace and Security of Mankind at its forty-eighth session, in 1996. 2. Members of the Commission (top) [See membership page] 3. Structure of the Commission (top) (a) Officers At the beginning of each session, the Commission elects from among its members the Chairman, the First and Second Vice-Chairmen, the Chairman of the Drafting Committee [17] and the General Rapporteur for that session. [18] The Chairman presides over the meetings of the plenary, the Bureau and the Enlarged Bureau. [19] A vice-chairman has the same powers and duties as the Chairman when designated to take the place of the Chairman. [20] The Chairman of the Drafting Committee presides over the meetings of the Drafting Committee; recommends the membership of the Drafting Committee for each topic; and introduces the report of the Drafting Committee when it is considered in plenary. The General Rapporteur is responsible for the drafting of the Commission’s annual report to the General Assembly. The Commission has emphasized that the General Rapporteur should play an active part in the preparation of the report [21] . (b) Bureau, Enlarged Bureau and Planning Group At each session, the Bureau, consisting of the five officers elected at that session, considers the schedule of work and other organizational matters with respect to the current session. The Enlarged Bureau, consisting of the officers elected at the current session, the former Chairmen of the Commission who are still members and the Special Rapporteurs, may also be called upon to consider issues relating to the organization, programme and methods of the Commission’s work. Since the 1970s, the Commission has established a Planning Group [22] for each session and entrusted it with the task of considering the programme and methods of work of the Commission. Since 1992, the Planning Group has established a Working Group on the Long-Term Programme which is entrusted with the task of recommending topics for inclusion in the Commission’s programme of work. The Working Group has been reconstituted with the same Chairman and membership during the remaining sessions of the quinquennium. The Planning Group may also establish a Working Group to review and consider ways of improving the methods of work of the Commission on the basis of a request by the General Assembly or on the Commission’s own initiative. (c) Plenary The Commission meets in plenary primarily to consider the reports of Special Rapporteurs, working groups, the Drafting Committee, the Planning Group as well as any other matters that may require consideration by the Commission as a whole. The Commission also decides in plenary to refer proposed draft articles to the Drafting Committee and to adopt provisional or final draft articles and commentaries. [23] At the end of each session, the Commission considers and adopts in plenary its annual report to the General Assembly. The primary role of the general debate in plenary is to establish the broad approach of the Commission to a topic for the primary purpose of providing guidance to the Commission, its subsidiary organs and Special Rapporteurs on the directions to be taken. [24] This is essential to ensure that subsidiary organs, such as the Drafting Committee or a working group, are working along lines broadly acceptable to the Commission as a whole. The Commission has indicated that the Chairman of the Commission should, whenever possible, indicate the main trends of opinion revealed by the debate in plenary to facilitate the task of the Drafting Committee. [25] The Commission has also recommended that the plenary debates should be reformed to provide more structure and to allow the Chairman to make an indicative summary of conclusions at the end of the debate, [26] based if necessary on an indicative vote. [27] At its forty-ninth session, in 1997, the Commission introduced the mechanism of short, thematic debates or exchanges of views in plenary on particular issues or questions raised during the consideration of a topic, the so-called “mini-debates,” in order to facilitate a more focused debate on particular issues. At its fifty-fourth session, in 2002, the Commission expressed the view that the “mini-debates” were useful and constituted an important innovation in its working methods. The Commission emphasized, however, that a mini-debate should be brief, focused and not include long statements falling outside its scope. [28] The Commission holds its plenary meetings in public [29] unless it decides otherwise, in particular when dealing with certain organizational or administrative matters. [30] The Commission’s decisions on substantive and procedural matters are taken in plenary or, if such decisions are reached in a private meeting or informal consultations, announced by the Chairman in plenary. [31] (d) Special Rapporteurs The role of the Special Rapporteur is central to the work of the Commission. [32] Although the Statute only envisages the appointment of a Special Rapporteur in the case of progressive development (article 16 (a)), the practice of the Commission has been to appoint a Special Rapporteur at the early stage of the consideration of a topic, where appropriate, without regard to whether it might be classified as one of codification or progressive development. [33] The functions of the Special Rapporteur continue until the Commission has completed its work on the topic, provided that he or she remains a member of the Commission. [34] In the event that it becomes necessary to appoint a new Special Rapporteur, the Commission usually suspends its work on the topic for an appropriate period of time to enable the newly appointed Special Rapporteur to perform the tasks required depending on the stage of work on the topic. Special Rapporteurs are one of the institutional features of the Commission which contribute to the efficient performance of its functions and which have served it well. [35] The Special Rapporteur performs a number of key tasks, including preparing reports on the topic, participating in the consideration of the topic in plenary, contributing to the work of the Drafting Committee on the topic, and elaborating commentaries to draft articles. The Special Rapporteur marks out and develops the topic, explains the state of the law and makes proposals for draft articles in the reports on the topic. [36] The reports of Special Rapporteurs form the very basis of work for the Commission and constitute a critical component of the methods and techniques of work of the Commission established in its Statute. [37] The Commission has recommended that Special Rapporteurs specify the nature and scope of work planned for the next session to ensure that future reports meet the needs of the Commission as a whole and that reports be available to members sufficiently in advance of the session to enable study and reflection. [38] The Commission has also recommended that a consultative group be appointed by the Commission to provide input on the general direction of the report and on any particular issues the Special Rapporteur wishes to raise. [39] The Special Rapporteur usually introduces the report at the beginning of the Commission’s consideration of the topic in plenary, responds to questions raised during the debate and makes concluding remarks summarizing the main issues and trends at the end of the debate. The role of the Special Rapporteur with respect to the Drafting Committee comprises the following elements: (a) to produce clear and complete draft articles; (b) to explain the rationale behind the draft articles currently before the Drafting Committee; and (c) to reflect the view of the Drafting Committee in revised draft articles and/or commentary. [40] The Special Rapporteurs should prepare commentaries to draft articles on their respective topics which are as uniform as possible in presentation and length. [41] The Special Rapporteurs should also, as far as possible, produce draft commentaries or notes to accompany their draft articles and revise them in the light of changes made by the Drafting Committee to ensure their availability at the time of the debate of the draft articles in plenary. [42] The Special Rapporteur may also draft other working documents of the Commission and the Drafting Committee, as required by the Commission’s progress of work on the topic. (e) Working groups The Commission has made use of working groups, sometimes called subcommittees, study groups or consultative groups, on particular topics. These ad hoc subsidiary bodies have been established by the Commission or by the Planning Group for different purposes and with different mandates. [43] They may be of limited membership or open-ended. [44] The Commission has established working groups on new topics before appointing a Special Rapporteur to undertake preliminary work or to help define the scope and direction of work, including: formulation of the Nürnberg principles; succession of States and Governments; question of treaties concluded between States and international organizations or between two or more international organizations; the law of the non-navigational uses of international watercourses; status of the diplomatic courier and the diplomatic bag not accompanied by diplomatic courier; international liability for injurious consequences arising out of acts not prohibited by international law (and second part of the topic); jurisdictional immunities of States and their property; diplomatic protection; and unilateral acts of States. [45] The Commission has also established working groups after appointing a Special Rapporteur [46] to consider specific issues or to determine the direction of the future work on a particular topic or sub-topic, including: arbitral procedure; State responsibility [47] ); relations between States and international organizations (first part of the topic and second part of the topic) [48] ); draft code of offences against the peace and security of mankind; international liability for injurious consequences arising out of acts not prohibited by international law (the topic as a whole, prevention aspect of the topic and liability aspect of the topic); unilateral acts of States; nationality in relation to the succession of States; diplomatic protection; responsibility of international organizations [49] ; and shared natural resources. [50] The Commission has further established working groups to handle a topic as a whole, for example, in case of urgency, including: question of the protection and inviolability of diplomatic agents and other persons entitled to special protection under international law; review of the multilateral treaty-making process; draft code of offences against the peace and security of mankind (draft Statute for an International Criminal Court); jurisdictional immunities of States and their property; and fragmentation of international law. [51] Whereas the Drafting Committee works on texts of articles prepared by a Special Rapporteur, a working group begins its work at an earlier stage when ideas are still developing and thus is more closely involved in the formulation of an approach and drafts. [52] Such a working group may continue its work over several sessions, with substantial continuity of membership, while the composition of the Drafting Committee changes from year to year. [53] In most cases, if the working group has undertaken careful drafting, the final product is submitted directly to the Commission in plenary, not to the Drafting Committee, to avoid duplication or even mistakes which may be made if members of the Drafting Committee have not been party to the detailed discussion which underlies a particular text. In some cases, however, the Drafting Committee may have a role in engaging in a final review of a text from the perspective of adequacy and consistency of language. [54] Whatever its mandate, a working group is always subordinate to the Commission, the Planning Group or other Commission organ which established it. It is for the relevant organ to issue the necessary mandate, to lay down the parameters of any study, to review and, if necessary, modify proposals, and to make a decision on the product of the work. [55] In 1996, the Commission recommended that working groups be more extensively used to resolve particular disagreements and, in appropriate cases, to expeditiously deal with whole topics; in the latter case normally acting in place of the Drafting Committee [56] . (f) Drafting Committee Since its first session, the Commission has made use of a Drafting Committee, [57] the composition of which has been progressively enlarged to take account of the increase in the size of the Commission. The membership of the Drafting Committee varies from session to session and, since 1992, from topic to topic at any given session, although it continues to be a single body exercising its functions under one Chairman. [58] The General Rapporteur takes part in the Drafting Committee’s work and the Special Rapporteurs who have not been appointed to the Drafting Committee participate when their topics are being considered. The Drafting Committee is also constituted so as to provide equitable representation of the principal legal systems and the various languages [59] of the Commission within limits compatible with its drafting responsibilities. [60] The Drafting Committee plays an important role in harmonizing the various viewpoints and working out generally acceptable solutions. [61] The Drafting Committee is entrusted not only with purely drafting points but also with points of substance which the full Commission has been unable to resolve or which seemed likely to give rise to unduly protracted discussion. [62] In practice, the Commission usually does not take a vote in the Commission at the end of its first discussion of a particular article, and leaves it to the Drafting Committee to try to draft a generally satisfactory text on the question. The Drafting Committee’s proposals have very often been adopted unanimously by the Commission, sometimes without discussion. However, the Drafting Committee’s texts are subject to amendments or alternative formulations submitted by members of the Commission and may be referred back to the Committee for further consideration. [63] The Commission has noted that premature referral of draft articles to the Drafting Committee, and excessive time-lags between such referral and actual consideration of draft articles in the Committee, have counter-productive effects. [64] The report of the Chairman of the Drafting Committee to the Commission in plenary provides a detailed summary of its work on each topic, including an explanation of the draft articles that have been adopted by the Drafting Committee and are submitted for consideration and adoption by the Commission in plenary. [65] 4. Programme of work (top) (see also: Analytical Guide) (a) Methods for the selection of topics Under the Statute, the Commission shall consider proposals for the progressive development of international law referred by the General Assembly (article 16) or submitted by Members of the United Nations, the principal organs of the United Nations other than the General Assembly, specialized agencies or official bodies established by intergovernmental agreements to encourage the progressive development and codification of international law (article 17). With respect to codification, the Commission is required to survey the whole field of international law with a view to selecting appropriate topics (article 18). In addition, the Commission may recommend to the General Assembly the codification of a particular topic which is considered necessary and desirable (article 18). At its first session, in 1949, the Commission decided that it had competence to proceed with its work of codification of a topic that it had recommended to the General Assembly without awaiting action by the General Assembly on such recommendation. [66] However, in practice, the Commission has generally sought endorsement by the General Assembly before engaging in the substantive consideration of a topic. The General Assembly may also request the Commission to deal with any question of codification which receives priority (article 18). In the early years, the Commission received a number of proposals and special assignments from the General Assembly as well as proposals from the Economic and Social Council. In 1996, the Commission expressed concern that the relevant provisions of the Statute have been used infrequently in recent years and recommended that the General Assembly — and through it other bodies within the United Nations system — should be encouraged to submit to the Commission possible topics involving codification and progressive development of international law. [67] The Commission has conducted two surveys of international law as provided for in its Statute, the first, at its first session, in 1949, on the basis of a Secretariat memorandum entitled “Survey of international law in relation to the work of codification of the International Law Commission,” [68] and the second, on the occasion of the Commission’s twentieth session on the basis of a series of documents prepared by the Secretariat, [69] in particular a working paper entitled “Survey of International Law,” prepared by the Secretary-General in response to the Commission’s request. [70] At its forty-eighth session, in 1996, the Commission analysed the scope for progressive development and codification after nearly fifty years of work by the Commission and, in order to provide a global review of the main fields of general public international law, established a general scheme of topics of international law classified under thirteen main fields of public international law, not meant to be exhaustive, that included topics already taken up by the Commission, topics under consideration by the Commission and possible future topics. [71] Apart from
the surveys, the Commission has held a periodic review of its programme
of work with a view to bringing it up to date, taking into account
General Assembly recommendations and the international community’s
current needs and discarding those topics which are no longer suitable
for treatment. Such a review has sometimes taken place at the request
of the General Assembly.
[72] (b) Procedure and criteria for the selection of topics Since 1992, the selection of topics by the Commission for its future work has been carried out in accordance with the procedure under which designated members of the Commission write a short outline or explanatory summary on one of the topics included in a pre-selected list, [73] indicating: (i) the major issues raised by the topic; (ii) any applicable treaties, general principles or relevant national legislation or judicial decisions; (iii) existing doctrine; and (iv) the advantages and disadvantages of preparing a report, a study or a draft convention, if a decision is taken to proceed with the topic. [74] The Working Group on the Long-term Programme considers the outlines or summaries on the various topics prepared by members with a view to identifying topics for possible future consideration by the Commission. The Chairman of the Working Group provides an annual oral progress report to the Planning Group at each session and submits a final written report containing a list of recommended topics accompanied by syllabuses in the last year of the quinquennium. The Planning Group considers and adopts the report which is then submitted to the Commission. The Commission considers and adopts this report in plenary and includes it in an annex to its annual report to the General Assembly. The list of topics is intended to facilitate the selection of topics by the newly-elected members of the Commission at the beginning of the next quinquennium, taking into account views expressed in the Sixth Committee. The list of topics is intended to perform a function similar to the 1949 list which guided the Commission in the selection of topics for more than fifty years. The Commission has recommended that the work on the identification of possibles future topics continue to follow this procedure which it considers to be an improvement. [75] In the selection of topics, the Commission has been guided by the following criteria: (i) the topic should reflect the needs of States in respect of the progressive development and codification of international law; (ii) the topic should be at a sufficiently advanced stage in terms of State practice to permit progressive development and codification; (iii) the topic should be concrete and feasible for progressive development and codification; and (iv) the Commission should not restrict itself to traditional topics, but should also consider those that reflect new developments in international law and pressing concerns of the international community as a whole. [76] (c) Topics on the Commission’s programme of work At its first session, in 1949, the Commission reviewed, on the basis of a Secretariat memorandum entitled “Survey of international law in relation to the work of codification of the International Law Commission”, [77] twenty-five topics for possible inclusion in a list of topics for study. Following its consideration of the matter, the Commission drew up a provisional list of fourteen topics selected for codification, as follows: (a) Recognition of States and Governments; (b) Succession of States and Governments; (c) Jurisdictional immunities of States and their property; (d) Jurisdiction with regard to crimes committed outside national territory; (f) Regime of territorial waters; [78] (g) Nationality, including statelessness; (h) Treatment of aliens; (i) Right of asylum; (j) Law of treaties; (k) Diplomatic intercourse and immunities; (l) Consular intercourse and immunities; (m) State responsibility; [79] and (n) Arbitral procedure. The Commission agreed to the 1949 list of fourteen topics on the understanding that it was provisional and that additions or deletions might be made after further study by the Commission or in compliance with the wishes of the General Assembly. Amendments were made in the course of the Commission’s consideration of certain topics. The topic of “Succession of States and Governments” was subsequently divided into three, namely succession in respect of treaties, succession in matters other than treaties, [80] and succession in respect of membership of international organizations. [81] The topics “Regime of the high seas” and “Regime of territorial waters,” for the most part, were considered separately, but, at its eighth session, in 1956, the Commission grouped together systematically all the rules it had adopted under these topics in the final report on the subject “Law of the Sea”. The Commission has submitted a final report on all of the topics included in the 1949 list, except for the following: (a) Recognition of States and Governments; (b) Jurisdiction with regard to crimes committed outside national territory; (c) Treatment of aliens; and (d) Right of asylum. [82] The 1949 list of topics constituted the Commission’s basic long-term programme of work for more than fifty years. The list was supplemented by the following topics: (a) Draft declaration on rights and duties of States; (b) Formulation of the Nürnberg principles; (c) Question of international criminal jurisdiction; (d) Ways and means for making the evidence of customary international law more readily available; [83] (e) Draft code of offences against the peace and security of mankind; [84] (f) Reservations to multilateral conventions; (g) Question of defining aggression; (h) Relations between States and international organizations [85] (first and second parts of the topic, the first dealing with the status, privileges and immunities of representatives of States to international organizations, and the second dealing with the status, privileges and immunities of international organizations and their personnel); (i) Juridical regime of historic waters, including historic bays; [86] (j) Special missions; [87] (l) Most-favoured-nation clause; (o) The law of the non-navigational uses of international watercourses; (p) Status of the diplomatic courier and the diplomatic bag not accompanied by diplomatic courier; [88] (q) Review of the multilateral treaty-making process; [89] (r) International liability for injurious consequences arising out of acts not prohibited by international law (first and second parts of the topic, the first dealing with prevention of transboundary damage from hazardous activities, and the second dealing with international liability in case of loss from transboundary harm arising out of such activities); (s) Reservations to treaties; [90] (t) Nationality in relation to the succession of States (first and second parts of the topic, the first dealing with the question of nationality of natural persons, and the second dealing with the question of nationality of legal persons); [91] (v) Unilateral acts of States; (w) Responsibility of international organizations; (x) Shared natural resources; and (y) Fragmentation of international law: difficulties arising from the diversification and expansion of international law. [92] The topics listed above that were placed on the Commission’s programme of work in addition to those included in the 1949 list may be divided into four categories: (1) topics that were a specific follow-up to the Commission’s previous work on one of the topics included in the 1949 list; (2) topics that were not a specific follow-up to the Commission’s previous work, but nonetheless relate to some extent to one of the 1949 topics; (3) topics that do not relate to any of the topics in the 1949 list; and (4) special assignments referred to the Commission by the General Assembly. The first category comprising the topics that were referred to the Commission by the General Assembly as a specific follow-up to the consideration by the Commission of a topic included in the 1949 list includes: (h) relations between States and international organizations (General Assembly resolution 1289 (XIII) of 5 December 1958 (E, F, S, R, C, A)); [93] (i) juridical regime of historic waters, including historic bays (General Assembly resolution 1453 (XIV) of 7 December 1959 (E, F, S, R, C, A)); [94] (j) special missions (General Assembly resolution 1687 (XVI) of 18 December 1961 (E, F, S, R, C, A)); [95] (l) the most-favoured-nation clause (General Assembly resolution 2272 (XXII) of 1 December 1967 (E, F, S, R, C, A)); [96] (m) question of treaties concluded between States and international organizations or between two or more international organizations (General Assembly resolution 2501 (XXIV) of 12 November 1969 (E, F, S, R, C, A)); [97] and (r) international liability for injurious consequences arising out of acts not prohibited by international law (General Assembly resolution 3071 (XXVIII) of 30 November 1973 (E, F, S, R, C, A)). [98] The topics listed in subparagraphs (i), (j) and (m) were referred to the Commission as a follow-up to the consideration by the General Assembly of a resolution previously adopted to that effect by a conference of plenipotentiaries. The second category comprising the topics that were not a specific follow-up to the Commission’s previous work, but nonetheless relate to one of the 1949 topics, includes: (p) the status of the diplomatic courier and the diplomatic bag not accompanied by diplomatic courier, [99] which relates to the topic of diplomatic intercourse and immunities; (s) reservations to treaties, which relates to the topic of the law of treaties; [100] (t) nationality in relation to the succession of States, which relates to both the topic of succession of States and Governments as well as the topic of nationality, including statelessness; and (u) diplomatic protection and (w) responsibility of international organizations both of which relate to the topic of State responsibility. [101] The third category comprising new topics that do not relate to any of the topics in the 1949 list includes: (o) the law of the non-navigational uses of international watercourses; (v) unilateral acts of States; (x) shared natural resources; [102] and (y) fragmentation of international law. The fourth category comprising special assignments in terms of requests by the General Assembly to the Commission to report on particular legal problems, to examine particular texts or to prepare a particular set of draft articles [103] includes: (a) draft declaration on rights and duties of States (General Assembly resolution 178 (II) of 21 November 1947 (E, F, S, R, C)); (b) formulation of the Nürnberg principles (General Assembly resolution 177 (II) of 21 November 1947 (E, F, S, R, C)); (c) question of international criminal jurisdiction (General Assembly resolution 260 B (III) of 9 December 1948 (E, F, S, R, C)); (e) draft code of offences against the peace and security of mankind (General Assembly resolution 177 (II) of 21 November 1947 (E, F, S, R, C)); (f) reservations to multilateral conventions (General Assembly resolution 478 (V) of 16 November 1950 (E, F, S, R, C, A)); (g) question of defining aggression (General Assembly resolution 378 (V) of 17 November 1950 (E, F, S, R, C)); (k) question of extended participation in general multilateral treaties concluded under the auspices of the League of Nations (General Assembly resolution 1766 (XVII) of 20 November 1962 (E, F, S, R, C, A)); (n) question of the protection and inviolability of diplomatic agents (General Assembly resolution 2780 (XXVI) of 3 December 1971 (E, F, S, R, C, A)); and (q) review of the multilateral treaty-making process (General Assembly resolution 32/48 of 8 December 1977 (E, F, S, R, C, A)). Most of the topics were referred to the Commission by the General Assembly, often as a result of an earlier initiative of the Commission itself. The topics listed above in subparagraphs (s)-(y) were selected by the Commission in accordance with the new procedure for the selection of topics. With respect to these topics, the General Assembly endorsed the Commission’s decisions to undertake studies on the topics of (s) reservations to treaties, (t) nationality in relation to the succession of States, (u) diplomatic protection and (v) unilateral acts of States; took note of the Commission’s decision to include in its programme of work the topics of (x) shared natural resources and (y) fragmentation of international law; and requested the Commission to begin its work on the topic of (w) responsibility of international organizations. The Commission has submitted a final report on all of the topics and sub-topics added to the 1949 list which are not under current consideration, except for the following: (h) the second part of the topic of relations between States and international organizations (status, privileges and immunities of international organizations and their personnel), (i) juridical regime of historic waters, including historic bays; and (t) the second part of the topic of nationality in relation to the succession of States (question of nationality of legal persons). [104] 5. Methods of work (top) (a) Progressive development and codification The drafters of the Statute conceived progressive development as a conscious effort towards the creation of new rules of international law, whether by means of the regulation of a new topic or by means of the comprehensive revision of existing rules. Accordingly, they considered that when the Commission is engaged in the progressive development of any branch of law, the consummation of the work could be achieved only by means of an international convention. [105] Thus the Statute contemplates that the Commission prepares a draft convention, and the General Assembly then decides whether steps should be taken to bring about the conclusion of an international convention. On the other hand, when the Commission’s task is one of codification (namely, the more precise formulation and systematization of existing customary law), the Statute envisages two other possible conclusions to its work: (a) simple publication of its report; and (b) a resolution of the General Assembly, taking note of or adopting the report (article 23, paragraph 1). The Statute also lays down the specific steps to be taken by the Commission in the course of its work on progressive development (articles 16 and 17) and on codification (articles 18 to 23). The Commission has indicated that the distinctions drawn in its Statute between the two processes have proved unworkable and could be eliminated in any review of the Statute. [106] Instead the Commission has proceeded with its work on the basis of a composite |
