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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.
League of Nations Codification
Conference (top)
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 The Hague
from 13 March to 12 April 1930; but the only international instruments
which resulted from its work were on the topic of nationality.
[8] The Conference
was unable to adopt any conventions on the topics of territorial
water or State responsibility. Although the Conference provisionally
approved certain draft articles on territorial waters which later
exerted influence to the extent that Governments accepted them as
a statement of existing international law, it failed to adopt even
a single recommendation on the subject of State responsibility.
No further
experiment in codification was made by the League
of Nations after 1930. But on 25 September 1931, the
League Assembly adopted an important resolution on the procedure
of codification, the main theme of which was the strengthening of
the influence of Governments at every stage of the codification
process.
[9] This underlying
theme was subsequently incorporated in the Statute of the International
Law Commission of the United Nations, together with certain other
recommendations stated in the resolution, such as the preparation
of draft conventions by an expert committee, and the close collaboration
of international and national scientific institutes.
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.
(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;
(e) Regime of the
high seas;
(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]
(k) Question of extended
participation in general multilateral treaties concluded under the
auspices of the League of Nations;
(l) Most-favoured-nation
clause;
(m) Question of treaties
concluded between States and international organizations or between
two or more international organizations;
(n) Question of the
protection and inviolability of diplomatic agents and other persons
entitled to special protection under international law;
(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]
(u) Diplomatic protection;
(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
idea of codification and progressive development. [107] It has
developed a consolidated procedure to its methods of work and applied
that method in a flexible manner making adjustments that the specific
features of the topic concerned or other circumstances demand. [108]
The Commission
does not necessarily begin consideration of a topic immediately
after it has been included in the programme of work. The Commission’s
actual consideration of a topic on its programme results, rather,
from a further decision of the Commission to place a topic on its
agenda. The Commission’s decision to take up a topic is mainly influenced
by the status of the consideration of other topics and requests
by the General Assembly (e.g., special assignments or requests to
give priority to certain topics or to begin work on a certain topic).
[109] In some
instances, the placing of a topic on the agenda has also been preceded
by preliminary work undertaken by a subcommittee or working group
established for this purpose.
The Commission
has identified three different stages generally present in the consideration
of a topic on its agenda: a first preliminary stage, devoted mainly
to the organization of work and the gathering of relevant materials
and precedents; a second stage, during which the Commission proceeds
to a first reading of the draft articles submitted by the Special
Rapporteur; and a third and final stage, devoted to a second reading
of the draft articles provisionally adopted. [110]
The first stage
usually comprises the following: appointment of a Special
Rapporteur; formulation of a plan of work; and, where necessary
or desirable, requests for data and information from Governments
[111] as well
as international organizations and for research projects, studies,
surveys and compilations from the Secretariat.
[112]
The second
stage usually comprises the following: the consideration of the
reports of the Special Rapporteur
[113] by the
Commission in plenary, and of the proposed draft articles in the
plenary and in the Drafting Committee; the elaboration of draft
articles with commentaries setting forth precedents, any divergences
of views expressed in the Commission, and alternative solutions
considered; [114] the approval
of the provisional draft articles in the Drafting Committee and
the draft articles with commentaries afterwards in the plenary;
and the issuance of the provisional draft with commentary as a Commission
document and its submission to the General Assembly, and also to
Governments for their written observations.
[115] As experience
has shown that a shorter period failed to elicit a sufficient number
of replies, Governments under the current procedure are normally
given more than one year in which to study these provisional drafts
and present their written observations before the Commission begins
the second reading of the draft articles.
[116]
The third stage
usually involves the study by the Special
Rapporteur of the replies received from Governments, together
with any comments made in the debates of the Sixth Committee; submission
of a further report to the Commission, recommending the changes
in the provisional draft that seem appropriate; the consideration
and approval of the revised draft in the Drafting Committee in the
light of the written and oral observations from Governments; and
adoption by the Commission in plenary of the final draft with commentaries
[117] and a
recommendation regarding further action.
[118]
The task of
the Commission in relation to a given topic is completed when it
presents to the General Assembly a final product on that topic,
which is usually accompanied by the Commission’s recommendation
on further action with respect to it. In some instances, the General
Assembly has requested the Commission to undertake further work
on a topic on which it has already submitted a final report.
[119]
The Commission
has generally considered that its drafts constitute both codification
and progressive development of international law in the sense in
which those concepts are defined in the Statute,
and has found it impracticable to determine into which category
each provision falls.
[120] The Commission
has usually recommended that the General Assembly take action envisaged
with respect to the codification of international law under its
Statute, namely: (a) to take no action, the report having already
been published; (b) to take note of or adopt the report by resolution;
(c) to recommend the draft to Members with a view to the conclusion
of a convention; or (d) to convoke a conference to conclude a convention
(article 23, paragraph 1).
The Commission
recommended that the General Assembly take the following action
with respect to the various draft articles in the years indicated
in parentheses: (a) take no action with respect to the draft article
on the contiguous zone since the report covering it had already
been published (1953); (b) adopt the reports containing drafts relating
to the continental shelf and fisheries (1953),
[121] and the
Model
Rules on Arbitral Procedure (1958); (c) adopt the draft
articles on nationality of natural persons in relation to the succession
of States in the form of a declaration (1999); (d) recommend
to Members the conclusion of a convention on arbitral
procedure (1953), elimination and
reduction of future statelessness (1954),
[122] diplomatic
intercourse and immunities (1958), special
missions (1967), [123] most-favoured-nation
clause (1978), law of the non-navigational
uses of international watercourses (1994),
[124] and prevention
of transboundary harm from hazardous activities (2001);
[125] (e) convoke
a conference to conclude a convention on the
law of the sea (1956), consular
intercourse and immunities (1961), law
of treaties (1966), representation
of States in their relations with international organizations
(1971), succession of States in respect
of treaties (1974), succession of
States in respect of State property, archives and debts (1981),
the treaties concluded between States
and international organizations or between two or more international
organizations (1982), status of
the diplomatic courier and the diplomatic bag not accompanied by
diplomatic courier and two optional protocols thereto (1989),
and jurisdictional immunities of States
and their property (1991); and (f) take note of the draft
articles on responsibility of States for internationally wrongful
acts and subsequently consider convening a conference to conclude
a convention (2001).
[126]
(b) Special
assignments
In performing special assignments, the question has arisen whether
the Commission, should use the methods laid down in its Statute
for carrying out its normal work of progressive development and
codification, or whether it was free to decide on the methods to
be used in such cases. The Commission has always decided that it
was free to adopt special methods for special tasks.
[127] The Commission
often dispenses with the normal stages of its work and considers
special assignments as a whole or in a working group without appointing
a Special Rapporteur or holding first
and second readings.
[128] In such
cases, the Commission reports its conclusions simply for the consideration
of the General Assembly, without recommending any of the courses
of action listed in article 23, paragraph 1, of the Statute. In
other cases, the Commission has used virtually the same working
methods for special assignments as for progressive development and
codification with the result being the submission of draft articles
accompanied by commentaries, and in some instances, a recommendation
for action by the General Assembly.
[129]
The Commission
submitted its reports with respect to the following special assignments
in the years indicated in parentheses: draft
declaration on rights and duties of States (1949); formulation
of the Nürnberg principles (1950); question
of international criminal jurisdiction (1950); question
of defining aggression (1951); reservations
to multilateral conventions (1951); draft
code of offences against the peace and security of mankind (1951,
1954, 1994
[130] and 1996);
extended participation in general multilateral
treaties concluded under the auspices of the League of Nations
(1963); question of the protection and inviolability
of diplomatic agents and other persons entitled to special protection
under international law (1972); and review of the multilateral
treaty-making process (1979).
The Commission’s
reports on the following special assignments contained draft articles
with commentaries: draft declaration on
rights and duties of States; formulation
of the Nürnberg principles; draft code
of offences against the peace and security of mankind; and question
of the protection and inviolability of diplomatic agents and other
persons entitled to special protection under international law.
The conclusions reached by the Commission on the other special assignments
did not lend themselves to the preparation of draft articles.
(c) Review
of methods of work
The Commission has periodically reviewed its methods of work, at the
request of the General Assembly or on its own initiative, in the
light of comments and suggestions made in the Sixth Committee or
in the Commission itself.
[131] It has
consequently introduced a number of changes aimed at expediting
or streamlining its procedures to respond more readily to its tasks. [132]
At its tenth
session, in 1958, the Commission considered various methods by which
its work might be accelerated based on a working paper prepared
by the Chairman of its previous session in response to observations
in the Sixth Committee.
[133] As a result
of this review, the Commission made changes in its methods of work
with respect to plenary meetings, the Drafting Committee and Government
comments. The Commission concluded that it might be useful in the
initial stages of preparing a draft on a difficult or complex subject
to make greater use of committees or sub-committees so that less
would be done in plenary. The Commission decided that in the future
the Drafting Committee should be formally constituted as what it
had long been in fact, namely, a committee to which could be referred
not merely pure drafting points, but also points of substance which
the full Commission had been unable to resolve, or which seemed
likely to give rise to unduly protracted discussion. The Commission
also decided to prepare its final draft at the second session following
that in which the first draft had been prepared which would give
more time for Governments to comment on the first drafts produced
by the Commission, also for the members to consider those comments
and for the Special Rapporteur to
make recommendations concerning them.
[134]
At its twentieth
session, in 1968, the Commission reviewed its methods of work based
on working papers prepared by the Secretariat.
[135] As a result
of this review, the Commission recommended that: the term of office
of its members be extended from five to six or seven years; an additional
special allowance be made available to Special Rapporteurs to help
defray expenses in connection with their work; and the staff of
the Codification Division be increased so that it could provide
additional assistance to the Commission and its Special
Rapporteurs.
[136]
At its twenty-seventh
session, in 1975, the Commission established a Planning Group in
the Enlarged Bureau to study the functioning of the Commission and
formulate suggestions regarding its work. As an initial project,
the Planning Group undertook a review of the existing workload of
the Commission with a view to proposing general goals toward which
the Commission might direct its efforts during its five-year term
of office ending in 1981.
[137] The adoption
by the Commission of general goals for completion of work on the
topics under consideration was received with approval in the General
Assembly.
[138] From 1977
on, the Commission has established a Planning Group [139] for each
of its annual sessions and entrusted it with the task of considering
the programme, organization and methods of work of the Commission.
At its thirtieth
and thirty-first sessions,
in 1978 and 1979, respectively, the Commission examined its methods
of work in the context of its consideration of the topic “Review
of the multilateral treaty-making process” pursuant to General Assembly
resolution 32/48 of 8 December 1977 (E,
F,
S,
R,
C,
A).
[140] The Commission
established a working group to consider preliminary questions raised
by the topic and to recommend to the Commission the action to be
taken in response to the General Assembly’s request. The Commission
subsequently adopted the report of the working group
[141] which
contained detailed observations on the following: (1) the International
Law Commission as a United Nations body; (2) the object and functions
of the Commission; (3) the role of the Commission and its contribution
to the treaty-making process through the preparation of draft articles;
(4) the consolidated methods and techniques of work of the Commission
as applied in general to the preparation of draft articles (without
distinguishing between the progressive development of international
law and its codification), including the functions performed by
the Special Rapporteur, the Drafting Committee and the Commission
during the three stages of consideration of a topic; (5) other methods
and techniques employed by the Commission (for example, with respect
to special assignments); (6) the relationship between the Commission
and the General Assembly; and (7) the elaboration and conclusion
of conventions based on draft articles prepared by the Commission
following a General Assembly decision to that effect The Commission
concluded, inter alia, that the techniques and procedures provided
in the Statute,
as they had evolved over three decades, were well adapted for the
object of the Commission set forth in article 1 of the Statute,
namely, the progressive development of international law and its
codification. The Commission noted that it might be necessary to
provide more assistance and facilities to Special
Rapporteurs to enable them to perform their duties in the future
and to make more use of questionnaires addressed to Governments
than in the past. The Commission did not, however, recommend any
major changes in its methods of work.
At its thirty-ninth
session, in 1987, the Commission considered thoroughly its methods
of work in all their aspects in response to General Assembly resolution
41/81 of 3 December 1986 (E,
F,
S,
R,
C,
A).
The Planning Group established a Working Group on Methods of Work
for this purpose. As a result, the Commission, while maintaining
the view that tested methods should not be radically or hastily
altered, agreed that some specific aspects of its procedures could
usefully be reviewed. The Commission believed that the Drafting
Committee, which played a key role in harmonizing the various viewpoints
and working out generally acceptable solutions, should work in optimum
conditions. As regards the composition of the Drafting Committee,
the Commission was aware that a proper balance must be kept, notwithstanding
practical constraints, between two legitimate concerns, namely that
the principal legal systems and the various languages should be
equitably represented in the Committee and that the size of the
Committee should be kept within limits compatible with its drafting
responsibilities. To facilitate the work of the Drafting Committee,
the Chairman of the Commission should, whenever possible, indicate
the main trends of opinion revealed by the debate in plenary. The
Commission was aware 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.
[142]
At its forty-fourth
session, in 1992, the Commission considered thoroughly its methods
of work in all their aspects as requested by the General Assembly
in resolution 46/54 of 9 December 1991 (E,
F,
S,
R,
C,
A).
On the recommendation of the Planning Group, the Commission adopted
guidelines with respect to the Drafting Committee and the Commission’s
report. The guidelines concerning the composition and working methods
of the Drafting Committee provide as follows: (a) the Drafting Committee
shall continue to be a single body, under one Chairman, but may
have a different membership for each topic; (b) the Drafting Committee
should, as a general rule, concentrate its work on two to three
topics at each session to attain greater efficiency; (c) the Chairman
of the Drafting Committee, in consultation with the other officers
of the Commission, shall recommend the membership for each topic;
(d) membership for each topic shall be limited to no more than fourteen
members and shall ensure as far as possible representation of the
different working languages; (e) members who are not serving on
the Drafting Committee for a given topic may attend the meetings
and occasionally be authorized to speak, but should exercise restraint;
(f) the Drafting Committee shall be given the necessary time for
the timely completion of the tasks entrusted to it; (g) when necessary,
the Drafting Committee may be given additional time for concentrated
work, preferably at the beginning of a session; and (h) the Drafting
Committee shall present a report to the Commission as early as possible
after the conclusion of its consideration of each topic. The guidelines
concerning the preparation and content of the Commission’s annual
report provide, inter alia, as follows: (a) the General Rapporteur
should play an active part in the preparation of the report to provide
the necessary coordination and consistency, bearing in mind continuing
efforts to avoid an excessively long report; and (b) the report
should include a summary of the work of the session as well as a
list of questions on which the views of the Sixth Committee would
be particularly helpful.
[143]
At its forty-sixth
and forty-seventh sessions,
in 1994 and 1995, respectively, the Commission considered its working
methods with respect to the commentaries to draft articles. The
Commission reviewed the conditions under which the commentaries
to draft articles are discussed and adopted. The Commission agreed
that the commentaries should be taken up as soon as possible at
each session in order to receive the requisite degree of attention
and should be discussed separately rather than in the framework
of the adoption of the annual report. The Commission noted that
the content and length of the commentaries accompanying draft articles
depend partly on the nature of the topic and the extent of the precedents
and other relevant data. Nonetheless, the Commission encouraged
its Special Rapporteurs to draft
the briefest possible commentaries and pay due attention to the
desirability of having the commentaries to the draft articles on
the various topics as uniform as possible in presentation and length. [144]
At its forty-eighth
session, in 1996, the Commission examined the procedures of its
work for the purpose of further enhancing its contribution to the
progressive development and codification of international law in
response to General Assembly resolution 50/45 of 11 December 1995
(E,
F,
S,
R,
C,
A).
The Planning Group established an informal working group which discussed
all of the issues involved. The Commission adopted the report of
the Planning Group
[145] which
contained the following recommendations with respect to plenary
meetings, the Drafting Committee, working groups, Special
Rapporteurs and the Commission’s annual
report: (a) the plenary debates should be reformed to provide
more structure and to allow for an indicative summary of conclusions
by the Chairman at the end of the debate, based if necessary on
an indicative vote; (b) the Drafting Committee should continue to
have a different membership for different topics; (c) working groups
should be used more extensively to resolve particular disagreements
and, in appropriate cases, as an expeditious way of dealing with
whole topics, in the latter case normally acting in place of the
Drafting Committee; (d) Special Rapporteurs
should specify the nature and scope of work planned for the next
session, work with a consultative group of members, produce draft
commentaries or notes to accompany their draft articles, which should
be revised in the light of changes made in the Drafting Committee
and made available at the time of the debate in plenary, and the
Special Rapporteur’s reports should be available sufficiently in
advance of the session; (e) the Commission should identify specific
issues for comment by the Sixth Committee before the adoption of
draft articles, where possible, and the Commission’s report should
be shorter, more thematic and should highlight and explain key issues
to assist in structuring the debate on the report in the Sixth Committee.
[146] The Commission
also recommended that goals should be set at the beginning and reviewed
at the end of each quinquennium, together with any preparations
that should be made to facilitate adopting the plan for the next
quinquennium at the beginning of its first year.
[147] The General
Assembly welcomed with appreciation the steps taken by the Commission
in relation to its internal matters to enhance its efficiency and
productivity and invited the Commission to continue taking such
measures.
[148]
6.
Meetings of the Commission (top)
(a) Rules
of procedure
As a subsidiary organ of the General Assembly, the procedure of the
Commission is governed by the rules of procedure of the General
Assembly relating to the procedure of committees (rules 96 to 133)
as well as rule 45 (duties of the Secretary-General) and rule 60
(public and private meetings) unless the Assembly or the Commission
decides otherwise.
[149] The Commission,
at its first session, in 1949,
decided that these rules of procedure should apply to the procedure
of the Commission, and that the Commission should, when the need
arose, adopt its own rules of procedure. [150]
(b) Agenda
At the beginning of each session, the Commission adopts the agenda
for the session. The provisional agenda is prepared by the Secretariat
on the basis of the decisions of the Commission and the pertinent
provisions of the Statute. The order in which items are listed in
the agenda adopted does not necessarily determine their actual order
of consideration by the Commission, the latter being rather a result
of ad hoc decisions. The agenda of a given session is to be distinguished
from the Commission’s programme of work. Not every topic on the
programme of work is necessarily included in the agenda of a particular
session.
[151] The Commission
gives serious consideration to recommendations by the General Assembly
to include a topic in the agenda of its next session. However, the
Commission decides whether it is appropriate to follow such a recommendation,
which is not reflected in the provisional agenda prepared by the
Secretariat, in the light of its previous decisions concerning the
plan of work for the session.
(c) Languages
The official languages of the Commission are those of the United Nations,
namely Arabic, Chinese, English, French, Russian and Spanish. [152] In the
subsidiary bodies, discussion is predominantly in English and French,
coinciding with the working language of the text under discussion,
if applicable, but members are free to use other official languages. [153]
(d) Decision
making
The Chairman of the Commission may declare a meeting open and permit
the debate to proceed when at least one quarter of the members are
present. The presence, however, of a majority of the Commission’s
members is required for a decision to be taken. Decisions are made
by a majority of the members present and voting. Members who abstain
from voting are considered as not voting.
[154]
In the early
years of the Commission, decisions were often taken by vote. At
a later stage, it became more common for the Commission to take
decisions on procedural and substantive matters without a vote,
by common understanding or consensus. [155] In 1996,
the Commission discussed the method of voting in the plenary and
subsidiary bodies and made some suggestions.
[156] It was
noted, that although at present the Commission and its subsidiary
bodies attempted to reach consensus, it would be less burdensome
and time-consuming to call for an indicative vote in certain cases,
for instance, on provisional and tentative points or points of detail,
with the reflection of minority views in the summary records and
in the report of the Commission. “When decisions ultimately come
to be taken, again every effort should be made to reach a consensus,
but if this is not possible in the time available, a vote may have
to be taken.”
[157]
(e) Report
of the Commission
At the end of each session, the Commission adopts a report
to the General Assembly, covering the work of the session, on
the basis of a draft prepared by the General Rapporteur with the
assistance of the Special Rapporteurs
concerned and the Secretariat.
[158]
The report
includes information concerning the organization of the session,
the progress of work and the future work of the Commission on the
topics given substantive consideration during the session, the texts
of draft articles and commentaries adopted by the Commission during
the session, any procedural recommendations of the Commission calling
for a decision on the part of the General Assembly as well as other
decisions and conclusions of the Commission.
The structure
of the report has changed from time to time.
[160] At present,
it is divided into the following main chapters: the first chapter
deals with organizational issues; the second chapter summarizes
the work of the session; the third chapter identifies specific issues
on which comments of Governments would be of particular interest
to the Commission; subsequent chapters are devoted to each of the
different topics considered at the session; and the last chapter
contains other decisions and conclusions of the Commission. The
Commission may also decide to include other relevant documents,
such as reports of working groups, in an annex to its report. [161]
The Commission’s
annual report is the means by which it keeps the General Assembly
informed on a regular basis of the progress of its work on the various
topics on its current programme as well as of its achievements in
the preparation of draft articles on these topics. The report is
also the means by which the Commission’s drafts are given the necessary
publicity provided for in articles 16 and 21 of its Statute.
[162]
(f) Summary
records
Since its establishment, the Commission has been provided with summary
records of its meetings in both provisional and final form, [163] in accordance
with the consistent policy of the General Assembly. [164] At its
thirty-second session, in 1980,
the Commission concluded that the provision of summary records of
its meetings constitutes an inescapable requirement for the procedures
and methods of work of the Commission and for the process of codification
of international law in general. The Commission has observed that
the need for summary records in the context of its procedures and
methods of work was determined by, inter alia, its functions and
composition. As its task is mainly to draw up drafts providing a
basis for the elaboration by States of legal codification instruments,
the debates and discussions held in the Commission on proposed formulations
are of paramount importance, in terms of both substance and wording,
for the understanding of the rules proposed to States by the Commission.
Pursuant to the Commission’s Statute,
members of the Commission serve in a personal capacity and do not
represent Governments. Therefore, States have a legitimate interest
in knowing not only the conclusions of the Commission as a whole
as recorded in its reports but also those of its individual members
contained in the summary records of the Commission, particularly
if it is borne in mind that members of the Commission are elected
by the General Assembly so as to ensure representation in the Commission
of the main forms of civilization and the principal legal systems
of the world. The summary records of the Commission are also a means
of making its deliberations accessible to international institutions,
learned societies, universities and the public in general. They
play an important role, in that respect, in promoting knowledge
of and interest in the process of promoting the progressive development
of international law and its codification. The Commission has emphasized
the importance of providing summary records of its meetings in both
provisional and final form and expressed its appreciation to the
General Assembly for doing so. [165]
(g) Yearbook
of the Commission
Following a request by the Commission, the General Assembly, in resolution
987 (X) of 3 December 1955 (E,
F,
S,
R,
C,
A), requested the Secretary-General to arrange for the printing of: (a)
the principal documents (namely, studies, reports, principal draft
resolutions and amendments presented to the Commission) relating
to the first seven sessions, in their original languages, and the
summary records of these sessions, initially in English; and (b)
the principal documents and summary records relating to the subsequent
sessions, in English, French and Spanish. As a result, an annual
publication entitled Yearbook
of the International Law Commission has been printed in
two volumes in respect of each session (except the first session
for which there is only one volume). The Yearbook has also
been published in Russian since 1969, in Arabic since 1982 and in
Chinese since 1989. Volume I of the Yearbook contains the
summary records of the meetings of the Commission and volume II
reproduces the principal documents, including the Commission’s report
to the General Assembly. Volume II is published in two parts, part
two reproducing, since 1976, the annual report of the Commission
to the General Assembly.
(h) Limitation
of documentation
[166]
From time to time, the Commission has addressed the question of the
applicability of United Nations regulations for the control and
limitation of documentation to its own documentation.
[167] The Commission
noted that the length of its documentation depended upon a series
of variable factors, for example: (i) as regards its annual report,
the duration of the session, the topics considered, the draft articles
and commentaries included and the Commission’s perception of the
need for explaining the work accomplished at that session and justifying
the draft articles contained therein to the General Assembly and
Member States;
[168] (ii) as
regards information provided by Governments and international organizations,
the volume of relevant information submitted by them since it is
an absolute need for the Commission to have at its disposal, in
extenso and in its working languages, the replies of Governments
and international organizations to its requests for information;
[169] (iii)
as regards the reports and working papers of the Special
Rapporteurs, the scope and complexity of the topic in question,
the stage of the Commission’s work on the topic, the nature and
number of proposals made by the Special Rapporteur, in particular
draft articles with supporting data derived from, inter alia, State
practice and doctrine, including analysis of relevant debates held
in the General Assembly as well as comments and observations submitted
by Governments;
[170] and (iv)
as regards research studies by the Secretariat, the nature of studies
which usually reflect “treaties, judicial decisions and doctrine”
as well as “the practice of States”, indispensable for the Commission’s
study of the various topics on its programme and formulation of
commentaries on the drafts it proposes to the General Assembly,
according to article 20 of its Statute.
[171] The Commission
has repeatedly concluded that the application of regulations for
the control and limitation of documentation to its own documentation
would render the documents in question unfit for the purpose for
which they are intended. “In the matter of legal research--and codification
of international law demands legal research--limitations on the
length of documents cannot be imposed.”
[172] This conclusion
has been endorsed by the General Assembly on a number of occasions.
[173]
At its fifty-fifth
session, in 2003, the Commission recalled the particular characteristics
of its work that make it inappropriate for page limits to be applied
to its documentation.
[174] In particular,
the Commission noted that it was established to assist the General
Assembly in the discharge of its obligation under Article 13, paragraph
1 (a), of the Charter of the United Nations. That obligation stemmed
from the recognition by those involved in drafting the Charter that,
if international legal rules were to be arrived at by agreement,
then in many areas of international law a necessary part of the
process of arriving at agreement would involve an analysis and precise
statement of State practice. Accordingly, the Commission is required
by its Statute
to justify its proposals to the General Assembly, and ultimately
to States, on the basis of evidence of existing law and the requirements
of progressive development in the light of the current needs of
the international community. Thus, the draft articles or other recommendations
contained in the reports of the Special Rapporteurs or the Commission’s
report must be supported by extensive references to State practice,
doctrine and precedents and be accompanied by extensive commentaries
in accordance with article 20 of the Statute. The Commission noted
that its documentation is also indispensable for the following reasons:
(1) it constitutes a critical component in the process of consulting
States and obtaining their views; (2) it assists individual States
in understanding and interpreting the rules embodied in codification
conventions; (3) it is part of the travaux preparatoires
of such conventions and is frequently referred to or quoted in the
diplomatic correspondence of States, in argument before the International
Court of Justice and by the Court itself in its judgments; (4) it
contributes to the dissemination of information about international
law in accordance with the relevant United Nations programme; and
(5) it forms as important a product of the Commission’s work as
the draft articles themselves and enables the Commission to fulfil,
in accordance with its Statute, the tasks entrusted to the Commission
by the General Assembly.
[175]
The
Commission therefore confirmed its previous conclusion that it would
be entirely inappropriate to attempt in advance and in abstracto
to fix the maximum length of its documentation.
[176] At the
same time, the Commission again stressed that it and its Special
Rapporteurs are fully conscious of the need to achieve economies
whenever possible in the overall volume of United Nations documentation
and will continue to bear such considerations in mind.
[177]
(i) Duration
of the session
The Statute
of the Commission does not specify the duration of its sessions.
Until 1973, the Commission’s sessions normally lasted ten weeks.
In 1973, the General Assembly approved a twelve-week period for
the Commission’s twenty-sixth
session, in 1974.
[178] The General
Assembly subsequently approved, “in the light of the importance
of its existing work programme, a twelve-week period for the annual
sessions of the International Law Commission, subject to review
by the General Assembly whenever necessary”.
[179]
Since 1974,
the Commission’s sessions have normally lasted twelve weeks, with
the exception of its thirty-eighth
session, in 1986, which was reduced to ten weeks for budgetary reasons.
In response to the view expressed by the Commission, the twelve-week
session was restored the following year.
[180] By subsequent
resolutions, most recently resolution 50/45 of 11 December 1995
(E,
F,
S,
R,
C,
A),
the Assembly expressed the view that the requirements of the work
for the progressive development of international law and its codification
and the magnitude and complexity of the subjects on the agenda of
the Commission made it desirable that the usual duration of its
sessions be maintained.
At its forty-eighth
session, in 1996, the Commission considered the duration of its
sessions in connection with the examination of its work procedures
requested by the General Assembly in resolution 50/45. The Commission
expressed the view that, in principle, it should be able to determine
on a year-to-year basis the necessary length of the following session
(i.e., twelve weeks or less), having regard to the state of work
and any priorities laid down by the General Assembly for the completion
of particular topics. The Commission favoured reverting to the previous
practice of holding ten-week sessions, with the possibility of extending
this to twelve weeks in particular years, as required, and especially
in the last year in a quinquennium.
[181] Since
1996, the Commission’s forty-ninth,
fifty-fourth and fifty-fifth
sessions, held in 1997, 2002 and 2003, respectively, consisted of
ten weeks; its fiftieth and
fifty-seventh sessions, held
in 1998 and 2005, respectively, consisted of eleven weeks, and its
fifty-first to fifty-third
and fifty-sixth sessions, held
in 1999, 2000, 2001 and 2004, respectively, consisted of twelve
weeks.
(j) Split
sessions
There is no statutory provision concerning dividing the Commission’s
annual session into two parts. The Commission has normally held
a single annual session, with the exception of the seventeenth
session which was held in Geneva
and Monaco
in 1965 and 1966.
At its forty-fourth
session, in 1992, the Commission considered the possibility of dividing
its annual session into two parts in the context of the review of
its programme, procedures and methods of work. The Commission considered
the advantages in terms of the effectiveness of its work as well
as the disadvantages in terms of administrative and financial problems.
The Commission concluded that the suggestion to divide its annual
session into two parts had not received enough support at that time
and therefore improvements in the effectiveness of its work should
continue to be sought under the current arrangements, for the time
being. [182]
At its forty-eighth
session, in 1996, the Commission returned to the question of holding
a split session in connection with the organization and length of
its sessions. Those in favour of a single session argued that a
continuous session was necessary to assure the best results on priority
topics, including careful consideration of proposed draft articles,
while maintaining progress and direction on other topics. Those
in favour of a split session argued that it would facilitate reflection
and study by members, improve productivity as a result of inter-sessional
preparation for the second part, encourage informal inter-sessional
work, give Special Rapporteurs time
to reconsider proposals, allow concentrated work by the Drafting
Committee or a working group at the end of the first part or the
beginning of the second part of the session, and facilitate better
and more continuous attendance of members. Noting that a split session
might not be significantly more expensive than a continuous session,
the Commission decided to recommend that a split session be held
as an experiment in 1998 in order to assess the advantages and disadvantages
in practice. [183]
The fiftieth
session of the Commission, in 1998, was divided into two parts,
with the first part of the session being held in Geneva
and the second in New
York. The Commission agreed to continue
the practice of split sessions as of 2000, scheduling the sessions
to take place in two rather evenly split parts, with a reasonable
period in between.
At its fifty-first
session, in 1999, the Commission examined the advantages and disadvantages
of holding split sessions in response to General Assembly resolution
53/102 of 8 December 1998 (E,
F,
S,
R,
C,
A).
The Commission concluded that a split session was more efficient
and effective and facilitated the uninterrupted attendance of its
members based on its experience in 1998. The Commission further
concluded that there were no disadvantages to a split session and
that any resulting cost increase should be more than offset by increased
productivity and cost-saving measures. In particular, the Commission
suggested adjusting the organization of work during sessions so
that one or two weeks at the end of the first part of the session
and/or the beginning of the second part of the session could be
devoted exclusively to the meetings which require the attendance
of a limited number of the Commission’s members.
[185] This measure
was put into effect at the fifty-third
session of the Commission, in 2001, pursuant to General Assembly
resolutions 54/111 of 9 December 1999 (E,
F,
S,
R,
C,
A)
and 55/152 of 12 December 2000 (E,
F,
S,
R,
C,
A).
[186]
The Commission
reached these conclusions on the understanding that it would maintain
a flexible need-based approach to the nature and duration of its
sessions. [187] The Commission’s
fifty-second to fifty-seventh sessions, held from 2000 to 2005,
consisted of two parts.
(k) Location
The Commission has held all of its sessions in Geneva, except for its
first session, which was held
in New York in 1949; its sixth
session, which was held at the headquarters of the United Nations
Educational, Scientific and Cultural Organization (UNESCO) in Paris
in 1954; the second part of its seventeenth
session, which was held in Monaco in January 1966; and the second
part of its fiftieth session,
which was held in New York in 1998.
Article 12
of the Statute
initially provided that the Commission would meet at the Headquarters
of the United Nations, while recognizing the right of the Commission
to hold meetings at other places after consultation with the Secretary-General.
The Commission held its first
session, in 1949, in New York. However, the
Commission decided, after consulting with the Secretary-General,
to hold its second to seventh
sessions, from 1950 to 1955, in Geneva.
[188] The Commission
preferred Geneva to New
York because its atmosphere and law library
were more favourable for the studies of a body of legal experts
and because its location simplified arrangements for its sessions
by the Secretariat.
[189] In 1955,
the General Assembly, acting on the recommendation of the Commission,
[190] amended
article 12 of the Statute
to provide for the Commission to meet at the European Office of
the United Nations at Geneva.
[191]
In introducing
the practice of split sessions, the Commission has considered holding
the second part of its split sessions in New York, towards the middle of the quinquennium,
in order to enhance the relationship between the Commission and
the General Assembly and its Sixth Committee.
[192]
7.
Relationship with Governments (top)
Governments have an important role in every stage of the Commission’s
work on the progressive development of international law and its
codification. Individually, they may refer a proposal or draft convention
to the Commission for consideration, furnish information at the
outset of the Commission’s work and comment upon its drafts as the
work proceeds. Collectively, they decide sometimes upon the initiation
or priority of the work and always upon its outcome.
(a) Direct
relationship with Governments
The Statute
provides for the consideration by the Commission of proposals and
draft multilateral conventions submitted directly by Members of
the United Nations (article 17, paragraph 1).
[193] In practice,
the Commission has never received such a proposal or draft directly
from a Member State
but rather indirectly from the General Assembly, usually following
its consideration in the Sixth Committee.
The Statute
of the Commission also contains provisions designed to give Governments
an opportunity to make their views known at every stage of the Commission’s
work. At the outset of its work, the Commission is required: (a)
to circulate a questionnaire to Governments, inviting them to supply
data and information relevant to items included in its plan of work
for progressive development (article 16 (c)); or (b) to address
to Governments a detailed request to furnish the texts of laws,
decrees, judicial decisions, treaties, diplomatic correspondence
and other documents relevant to the topic being studied for codification
(article 19, paragraph 2). The Commission is also required to invite
or request Governments to submit comments on the Commission’s document
containing the initial draft as well as appropriate explanations,
supporting material and information supplied by Governments (article
16 (g) to (h) and article 21). Finally, the Commission
is required to take into consideration such comments in preparing
the final draft and explanatory report (articles 16 (i) and
22).
The Commission
has noted the fundamental and basic role that materials, comments
and observations submitted by Governments play in the codification
methods of the Commission. The interaction between the Commission,
a permanent body of legal experts serving in their personal capacity,
and Governments, through a variety of means including the submission
of materials and written comments and observations, is at the core
of the system created by the General Assembly for the promotion,
with the assistance of the Commission, of the progressive development
of international law and its codification.
[194]
The Commission
has indicated its concern that, in practice, the data and comments
submitted by Governments in relation to particular topics have in
some cases tended to be limited in quantity.
[195] The Commission
has attempted to make the questionnaires sent to Governments more
“user-friendly” by indicating clearly what is requested and why.
[196] In 1958,
the Commission stated in its report that it “felt little doubt that
its work tended to suffer because of defects in the process of obtaining
and dealing with the comments of Governments”, and accordingly it
decided to give Governments more time to prepare their comments.
[197] The General
Assembly has repeatedly noted that consulting with national organizations
and individual experts concerned with international law may assist
Governments in considering whether to make comments and observations
on drafts submitted by the Commission and formulating their comments
and observations.
[198] The written
comments have been supplemented by the comments made during the
annual debates in the Sixth Committee on the Commission’s reports
to the General Assembly.
[199]
After the Commission
has submitted its final draft to the General Assembly on a topic,
the Assembly normally requests comments of Governments on that draft.
Such comments are considered by the General Assembly’s Sixth Committee
in connection with further consideration of the topic before the
convening of the diplomatic conference or in connection with the
elaboration of the convention by the General Assembly itself (e.g.,
special missions, prevention and punishment of crimes against diplomatic
agents and other internationally protected persons, and the law
of the non-navigational uses of international watercourses), or
by the diplomatic conference called upon to draw up the convention
on the topic concerned. Occasionally, Governments have also been
invited to submit amendments to the Commission’s draft articles
before the opening of the diplomatic conference (e.g., consular
intercourse and immunities, and law of treaties). Those amendments
are subsequently referred to the conference.
(b) Relationship
with the General Assembly
The General Assembly, usually on the recommendation of its Sixth Committee,
has requested the Commission to study or to continue to study a
number of topics, or to give priority to certain topics from among
those already selected by the Commission itself; has rejected, or
deferred action in respect of, certain drafts and recommendations
of the Commission; has referred a draft back to the Commission for
reconsideration and redrafting; has invited the Commission to present
comments regarding outstanding substantive issues related to the
draft articles; has decided to convoke diplomatic conferences to
study and adopt draft conventions prepared by the Commission; and
has decided to consider and adopt draft conventions prepared by
the Commission.
[200] These
collective decisions have sometimes been preceded by, or have given
rise to, discussions on the appropriate role of the Assembly and
its Sixth Committee in relation to the work of the Commission. These
debates and a number of resolutions resulting from them have gradually
formed a general pattern of working relationships between the two
bodies.
Although the
Statute
of the Commission is silent on the matter, the Commission from its
first session has submitted to the
General Assembly a report on the work done at each of its sessions.
The well-established practice of annually considering the Commission’s
reports in the Sixth Committee has facilitated the development of
the existing relationship between the General Assembly and the Commission.
The Chairman of the Commission introduces its report in the Sixth
Committee and attends the meetings during which the report is considered.
The Commission also designates a Special
Rapporteur to attend the Sixth Committee under the terms of
paragraph 5 of General Assembly resolution 44/35 of 4 December 1989
(E,
F,
S,
R,
C,
A).
The Chairman and the Special Rapporteur may make observations during
the meetings in response to the comments of delegations and may
also meet informally with delegations. Every year several members
of the Commission are also designated by their States to serve on
the Sixth Committee as representatives. A number of individuals
who have been elected to membership in the Commission have at some
time represented their States in the Sixth Committee.
The Commission
has made changes with respect to the preparation and content of
its report to facilitate a more structured and focused debate in
the Sixth Committee. In 1992, the Commission adopted guidelines
on the preparation and content of its report which provide, inter
alia, as follows: (a) efforts should continue to avoid excessively
long reports; (b) the report should include a chapter providing,
in a summary form, a general view of the work of the session to
which the report refers, including a list of questions on which
the Commission would find the views of the Sixth Committee particularly
helpful; (c) parts of the report indicating previous work on each
topic should continue to be as brief as possible; (d) the summary
of debates should be more compact, giving emphasis to trends of
opinions rather than to individual views unless such an individual
view was a reservation to a decision taken by the Commission; and
(e) the presentation of fragmentary results that can not be properly
assessed by the Sixth Committee without additional elements should
be a summary, with the indication that the matter will be more fully
presented in a future report. [201] The Commission
has requested the Secretariat to circulate the chapters of the report
containing a summary of the Commission’s work and the specific issues
on which views from Governments would be particularly useful (Chapters
II and III) as well as the text of draft articles adopted at each
session shortly after the end of the session before the report is
issued. [202]
The Sixth Committee
has also attempted to improve its own method of consideration of
the Commission’s report in order to provide effective guidance for
the Commission regarding its work, for example, by: (a) indicating
the dates when the Commission’s annual report will be considered
in the Sixth Committee at the next session of the General Assembly;
[203] (b) providing
for the consideration of the report in late October to give delegates
time to examine carefully and prepare statements on the report which
is issued in September; (c) inviting the Commission, when circumstances
so warrant, to request a Special Rapporteur to attend the session
of the General Assembly during the discussion of the respective
topic; [204] (d) encouraging
the holding of informal discussions between the members of the Sixth
Committee and those members of the Commission attending the session
of the General Assembly;
[205] and (e)
structuring the debates on the report in such a manner that conditions
are provided for concentrated attention to each of the main topics
dealt with in the report.
[206] The Sixth
Committee has also made suggestions regarding the length and content
of the Commission’s reports to the General Assembly, including shortening
the report and focusing on points requiring comments by Governments. [207] The General
Assembly recommended the continuation of efforts to improve the
ways in which the report of the Commission is considered in the
Sixth Committee, with a view to providing effective guidance for
the Commission in its work.
[208]
In 2003, the
General Assembly, in resolution 58/77 of 9 December 2003 (E,
F,
S,
R,
C,
A)
decided to designate the first week in which the report of the International
Law Commission is discussed in the Sixth Committee as "International
Law Week", and encouraged Member States to consider being represented
at the level of legal adviser in order to enable hihg-level discussions
on issues of international law.
The Sixth Committee,
following its consideration of the Commission’s report,
[209] submits
a report to the General Assembly which contains a summary of its
consideration of the agenda item, including the relevant documentation,
as well as one or more draft resolutions recommended for adoption
by the General Assembly. The General Assembly considers and adopts
a resolution on the report of the Commission, usually as recommended
by the Sixth Committee without change, indicating any recommendations
or instructions that it may have with respect to the Commission’s
work, both substantive and procedural. The General Assembly may
also adopt a separate resolution or decision, again based on the
recommendation of the Sixth Committee, with respect to a particular
topic relating to the Commission’s work when appropriate. [210]
The Sixth Committee
has indicated broad policy guidelines when assigning topics to the
Commission or when giving priority to some topics, and has exercised
its judgement as to action in regard to the Commission’s final drafts
and recommendations. This policy supervision by the Sixth Committee,
however, has tended to be exercised with great restraint. The fact
that the Commission is a subsidiary organ of the General Assembly
has not prevented wide acceptance in the Sixth Committee of the
view that the Commission should have a substantial degree of autonomy
and that it should not be subject to detailed directives from the
Assembly. [211] At the
same time, the Commission, at each of its sessions, takes fully
into consideration the recommendations addressed to it by the General
Assembly and the observations made in the Sixth Committee in connection
with the Commission’s work in general or its specific drafts.
The Sixth Committee,
while carefully examining the Commission’s reports, has never given
precise instructions regarding changes in the form or contents of
the Commission’s provisional drafts and has refrained from modifying
the final drafts submitted by the Commission before reaching the
final stage of the codification process, normally the adoption of
the corresponding codification convention. The eventual modification
of a Commission’s final draft has been left to the body entrusted
with the elaboration of the convention. On three occasions, with
regard to the topics “Special missions,”
“Question of the protection and inviolability
of diplomatic agents and other persons entitled to special protection
under international law” and “The
law of the non-navigational uses of international watercourses”,
the Sixth Committee itself was entrusted with the task of elaborating
the conventions with a view to their adoption by the General Assembly.
In the process of elaborating the conventions, the Sixth Committee
acted mutatis mutandis as a codification conference, studying in
detail each of the provisions of the draft articles prepared by
the International Law Commission and amending some of them. The
General Assembly subsequently adopted the texts of the Convention
on Special Missions and of the Optional
Protocol concerning the Compulsory Settlement of Disputes relating
thereto, the text of the Convention
on the Prevention and Punishment of Crimes against Internationally
Protected Persons, including Diplomatic Agents, as well as the
text of the Convention
on the Law of Non-navigational Uses of International Watercourses,
as elaborated by the Sixth Committee.
The General
Assembly frequently invites the Commission’s Special Rapporteur
on a topic to attend as an expert consultant the proceedings of
the body entrusted with the task of elaborating the corresponding
codification convention.
[212] The international
conferences which have finalized the Commission’s draft articles
and adopted them as conventions have always paid tribute to the
Commission for its efforts in codification and progressive development
of international law.
Through its
resolutions, the General Assembly has also contributed to establishing
and improving the dialogue between the Commission and Governments.
The Secretary-General forwards to the Commission and makes available
to its members, as appropriate, the relevant resolutions of the
General Assembly, as well as the reports and the summary records
of the meetings of the Sixth Committee relating to the Commission’s
work. In addition, the Secretariat produces the topical summary
of the Sixth Committee’s consideration of the report of the Commission
as part of the Commission’s documentation
for each session.
8. Relationship
with other bodies (top)
[see Activities
page]
9.
The Secretariat (top)
In accordance with article 14 of the Statute
of the Commission, the Secretary-General of the United Nations provides
the staff and facilities required by the Commission to fulfil its
task. The Codification Division of the Office of Legal Affairs of
the United Nations provides the Secretariat for the Commission.
The Commission has recognized the essential contribution of the
Codification Division. Members of the Codification Division assist
the officers of the Commission by, inter alia, providing the agenda,
keeping records and preparing drafts of reports to the Commission.
They assist in the preparation of the commentary to draft articles,
although the Commission remains of the view that this is the primary
responsibility of the Special Rapporteur. In working groups, where
there may be no Special Rapporteur, this assistance is invaluable.
The Commission has recommended that members of the Codification
Division should be encouraged to make an even greater contribution
to the Commission’s work.
[213]
In addition
to providing this substantive servicing to the Commission and its
subsidiary bodies, the Codification Division undertakes considerable
research to facilitate the work of the Commission.
[214] At the
preliminary stage of the consideration of a topic, the Codification
Division may, at the Commission’s request or on its own initiative,
prepare substantive studies and carry out research projects to facilitate
the commencement of work on the topic by the Commission and the
Special Rapporteur concerned. Secretariat studies and research projects
may also be requested by the Commission or the Special Rapporteur
concerned at other stages in the consideration of a topic. At its
thirty-second session, in 1980,
the Commission noted that the studies and research projects prepared
by the Codification Division are part and parcel of the consolidated
method and techniques of work of the Commission and, as such, constitute
an indispensable contribution to its work.
[215]
The Codification
Division has prepared a number of studies and surveys on general
questions relating to progressive development and codification
[216] as well
as on particular topics on the programme of the Commission or aspect
thereof.
[217] Except
for those prepared in 1948 and 1949, these studies and surveys are
published in volume II of the Yearbook
of the International Law Commission.
The Codification
Division has also published, primarily for the assistance of the
Commission, in the United Nations Legislative Series, collections
of laws, decrees and treaty provisions on such subjects as: the
regime of the high seas; the nationality of ships; the regime of
the territorial sea; diplomatic and consular privileges and immunities;
the legal status, privileges and immunities of international organizations;
nationality; the conclusion of treaties; the utilization of international
rivers for purposes other than navigation; succession of States;
the law of the sea; jurisdictional immunities of States and their
property; and review of the multilateral treaty-making process.
Texts of arbitral awards are also published by the Codification
Division in the Reports of International Arbitral Awards.
The Commission
has recognized the increased role of the Codification Division in
providing assistance to the Commission and its Special Rapporteurs,
especially in the area of research and studies. The Commission has
recommended that the contribution of the Codification Division to
the Commission’s work be maintained and reinforced.
[218] The General
Assembly has endorsed the Commission’s recommendation for the strengthening
and increased role of the Codification Division since 1977 in resolutions
concerning the report of the Commission.
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