International Law Commission

Origin and background of the development and codification of international law

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.

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)

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.

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].

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.

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]

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.

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]

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].

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]

Under the Statute, the Commission shall consider proposals for the progressive development of international law referred by the General Assembly (article 16) or submitted by Members of the United Nations, the principal organs of the United Nations other than the General Assembly, specialized agencies or official bodies established by intergovernmental agreements to encourage the progressive development and codification of international law (article 17). With respect to codification, the Commission is required to survey the whole field of international law with a view to selecting appropriate topics (article 18). In addition, the Commission may recommend to the General Assembly the codification of a particular topic which is considered necessary and desirable (article 18). At its first session, in 1949, the Commission decided that it had competence to proceed with its work of codification of a topic that it had recommended to the General Assembly without awaiting action by the General Assembly on such recommendation.^[66] However, in practice, the Commission has generally sought endorsement by the General Assembly before engaging in the substantive consideration of a topic. The General Assembly may also request the Commission to deal with any question of codification which receives priority (article 18).

In the early years, the Commission received a number of proposals and special assignments from the General Assembly as well as proposals from the Economic and Social Council. In 1996, the Commission expressed concern that the relevant provisions of the Statute have been used infrequently in recent years and recommended that the General Assembly — and through it other bodies within the United Nations system — should be encouraged to submit to the Commission possible topics involving codification and progressive development of international law.^[67]

The Commission has conducted two surveys of international law as provided for in its Statute, the first, at its first session, in 1949, on the basis of a Secretariat memorandum entitled “Survey of international law in relation to the work of codification of the International Law Commission,”^[68] and the second, on the occasion of the Commission’s twentieth session on the basis of a series of documents prepared by the Secretariat,^[69] in particular a working paper entitled “Survey of International Law,” prepared by the Secretary-General in response to the Commission’s request.^[70]

At its forty-eighth session, in 1996, the Commission analysed the scope for progressive development and codification after nearly fifty years of work by the Commission and, in order to provide a global review of the main fields of general public international law, established a general scheme of topics of international law classified under thirteen main fields of public international law, not meant to be exhaustive, that included topics already taken up by the Commission, topics under consideration by the Commission and possible future topics.^[71]

Apart from the surveys, the Commission has held a periodic review of its programme of work with a view to bringing it up to date, taking into account General Assembly recommendations and the international community’s current needs and discarding those topics which are no longer suitable for treatment. Such a review has sometimes taken place at the request of the General Assembly.^[72]

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]

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:

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:

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:

(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]

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 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).

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 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]

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]

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.

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]

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]

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.^[159]

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]

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]

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.

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]

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.

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.^[184]

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.

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]

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.

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.

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 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.

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.

^[1] In his Principles of International Law (written in the period 1786-1789), Bentham envisaged that an international code, which should be based on a detailed application of his principle of utility to the relations between nations, would not fail to provide a scheme for an everlasting peace. However, he made little effort to base his plans for such a code upon the existing law of nations.

^[2] See document A/AC.10/25, “Note on the private codification of public international law”.

^[3] See documents A/AC.10/5, “Historical survey of the development of international law and its codification by international conferences”; and A/AC.10/8, “Outline of the codification of international law in the inter-American system with special reference to the methods of codification”.

^[4] For the text of the Conventions, see United Nations, Treaty Series, vol. 75, p. 2. For the text of the Protocols, see ibid., vol. 1125, pp. 3 and 609.

^[5] See the Final Act of the Peace Conference of 1907, in J. B. Scott, The Hague Peace Conferences of 1899 and 1907 (1909), vol. II, pp. 289-291.

^[6] League of Nations, Official Journal, Special Supplement, No. 21, p. 10.

^[7] Ibid., No. 53, p. 9.

^[8] On 12 April 1930, the Conference adopted the following instruments:

1. Convention on certain questions relating to the conflict of nationality laws (League of Nations, Treaty Series, vol. 179, p. 89);

2. Protocol relating to military obligations in certain cases of double nationality (ibid., vol. 178, p. 227);

3. Protocol relating to a certain case of statelessness (ibid., vol. 179, p. 115);

4. Special Protocol concerning statelessness (League of Nations document C.27.M.16.1931.V).

Except for No.4, the above instruments have been in force since 1937.

^[9] League of Nations, Official Journal, Special Supplement, No. 92, p. 9.

^[10] See Documents of the United Nations Conference on International Organization, San Francisco, 1945, vol. III, documents 1 and 2; vol. VIII, document 1151; and vol. IX, documents 203, 416, 507, 536, 571, 792, 795 and 848.

^[11] See Official Records of the General Assembly, Second Session, Sixth Committee, Annex 1.

^[12] The Sixth Committee is the main committee of the General Assembly of the United Nations which is entrusted with the consideration of legal issues. See rules of procedure of the General Assembly, rule 98 (document A/520/Rev.15/Amend.2). Relevant information and documentation may be found on the official web site of the Sixth Committee. See www.un.org/law/cod/sixth.

^[13] See Official Records of the General Assembly, Second Session, Sixth Committee, Annex 1g.

^[14] See General Assembly resolutions 485 (V) of 12 December 1950 (E, F, S, R, C), 984 (X) (E, F, S, R, C, A) and 985 (X) (E, F, S, R, C, A) of 3 December 1955, 1103 (XI) of 18 December 1956 (E, F, S, R, C, A), 1647 (XVI) of 6 November 1961 (E, F, S, R, C, A) and 36/39 of 18 November 1981 (E, F, S, R, C, A). The amendments relate to the expenses to be paid to the members of the Commission, the location of the Commission’s meetings, the extension of the term of office of Commission members, the size of the Commission as well as the regional distribution of its membership. In 1996, the Commission noted that its Statute, which was drafted shortly after the end of the Second World War, had never been the subject of a thorough review and revision. The Commission concluded that, on the whole, the Statute had been flexible enough to allow modifications in practice. At the same time, the Commission drew attention to some aspects of its Statute which warranted review and revision as the Commission approach its fiftieth year. The Commission recommended that consideration be given to consolidating and updating the Commission’s Statute to coincide with the fiftieth anniversary of the Commission in 1999. See Yearbook of the International Law Commission, 1996, vol. II (Part Two), paras. 147 (a), 148 (s) and 241-243.

^[17] Since 1974, the Commission has elected the Chairman of the Drafting Committee. Previously, the First Vice-Chairman of the Commission also served as Chairman of the Drafting Committee. See Yearbook of the International Law Commission, 1979, vol. II (Part One), document A/CN.4/325, para. 45.

^[18] In accordance with the practice of the Commission, the posts of Chairman and the other four officers have been rotated among nationals of the various regional groups.

^[19] The functions of the Chairman are described in greater detail in rule 106 of the rules of procedure of the General Assembly.

^[20] See rule 105 of the rules of procedure of the General Assembly.

^[22]^{In
the early years, the Commission established the Planning Group
in the Enlarged Bureau which reviewed its report. More recently,
the Commission has established the Planning Group as a subsidiary
body of the Commission which reports directly to it.}

^[23]^{The
Commission has decided that the commentaries to draft articles
should be considered in plenary as soon as possible during each
session and separately from the Commission’s annual report. See
Yearbook
of the International Law Commission, 1994,
vol. II (Part Two), para. 399.}

^[26] See also the discussion below of the possible role of the Special Rapporteur in this respect.

^[28] See Official Records of the General Assembly, Fifty-seventh Session, Supplement No. 10 (A/57/10), para. 523.

^[29] See rule 60 of the rules of procedure of the General Assembly.

^[31] This is similar to the practice followed by the General Assembly. See rule 61 of the rules of procedure of the General Assembly. The summary records of the plenary meetings of the Commission are published in the Commission’s Yearbook. In addition, the major decisions taken in plenary are summarized in the relevant chapters of the Commission’s annual report to the General Assembly. See Yearbook of the International Law Commission, 1979, vol. II (Part One), document A/CN.4/325, para. 8.

^[33] In practice special rapporteurships tend to be distributed among members from different regions. See Yearbook of the International Law Commission, 1996, vol. II (Part Two), paras. 185 and 186. The Commission has appointed one of its members to serve as Special Rapporteur for each topic on its current agenda, with the exception of the appointment of two Special Rapporteurs for the topic “Question of international criminal jurisdiction,” one Special Rapporteur for the topics “Formulation of the Nürnberg principles” and “Draft Code of Offences,” and one Special Rapporteur for the topics “Regime of the high seas” and “Regime of territorial waters”. See Yearbook of the International Law Commission, 1949, Report to the General Assembly, paras. 31 and 34.

^[34] The Special Rapporteur for State responsibility, Roberto Ago, resigned from the Commission upon his election to the International Court of Justice in 1978. The Chairman of the Commission sent a letter to the President of the Court requesting that Judge Ago continue to be available to the Commission in his private capacity in order to assist it in finalizing the first part of its draft on State responsibility. The Court acceded to the request in order to facilitate the Commission’s work on State responsibility on the understanding that Judge Ago would be available in an individual and personal capacity to assist the Commission in its consideration of the few remaining articles of a draft of which he himself had been the prime author; there was no question of his being appointed, designated or given any official title such as “expert consultant”; and priority would have to be given to his judicial duties. Mr. Ago attended the thirty-first and thirty-second sessions of the Commission, in 1979 and 1980, respectively. In 1979, he introduced to the Commission and commented on his eighth report. In 1980, he presented to the Commission the addendum to his eighth report. See Yearbook of the International Law Commission, 1979, vol. II (Part Two), para. 69, and ibid., 1980, vol. II (Part Two), para. 28. The Special Rapporteur for the law of the non-navigational uses of international watercourses, Stephen M. Schwebel, after his resignation from the Commission in 1981, continued and completed his research for the third report on the topic which he had begun to prepare prior to his resignation from the Commission. See Yearbook of the International Law Commission, 1982, vol. II (Part Two), para. 251.

^[36] See Yearbook of the International Law Commission, 1996, vol. II (Part Two), para. 188. The reports of the Special Rapporteurs are reproduced in the Yearbook of the Commission.

^[39] The Commission further recommended that the principle of a consultative group should be recognized, without any distinction being drawn between codification and progressive development, in any revision of the Statute. See Yearbook of the International Law Commission, 1996, vol. II (Part Two), paras. 148 (g) and 191-195.

^[41] See Yearbook of the International Law Commission, 1995, vol. II (Part Two), para. 508. The main function of a commentary is to explain the text itself, with appropriate references to key decisions, doctrine and State practice to indicate the extent to which the text reflects, develops or extends the law. Generally speaking it is not the function of such commentary to reflect disagreements on the text as adopted on second reading which can be done in the Commission in plenary at the time of final adoption of the text and reflected in the Commission’s report. See Yearbook of the International Law Commission, 1996, vol. II (Part Two), para. 198.

^[44] The names of members of working groups of limited membership are listed in the report of the Commission on the session at which a group is established.

^[45] In most cases, the chairman of such a working group has been appointed subsequently by the Commission as the Special Rapporteur for the topic.

^[46] This type of group is envisaged with respect to progressive development in article 16 (d) and (i) of the Statute.

^[47] The Commission established two working groups on this topic in 2001.

^[48] This working group was established by the Planning Group of the Enlarged Bureau.

^[49] The Commission established two working groups on this topic in 2003.

^[50] These working groups are usually chaired by the Special Rapporteur assigned to the topic.

^[51] These working groups are usually of substantial size and no Special Rapporteur is appointed.

^[52] For instance, the working group that elaborated the statute for an international criminal court began by focusing on some basic propositions on which agreement could be reached, before even attempting to draft any articles.

^[55] See Yearbook of the International Law Commission, 1996, vol. II (Part Two), para. 219. The final outcome of work by a working group may be an oral report of the Chairman of the working group to the Commission in plenary which is reflected in the summary records or a written report issued as a document which may be included in the Commission’s report.

^[57] Committees in the nature of drafting committees were set up by the Commission to deal with specific topics or questions at its first three sessions. However, a standing Drafting Committee has been used at each session of the Commission since its fourth session, in 1952. See Yearbook of the International Law Commission, 1979, vol. II (Part One), document A/CN.4/325, para. 45.

^[59] The practice of multilingual drafting, now customary in the Commission, as opposed to mere translation from the working language of the Special Rapporteur into the other working languages, frequently brings to light unsuspected questions of substance. This has added additional responsibilities to the work of the Drafting Committee.

^[65] There are no summary records of the meetings of the Drafting Committee which are not public meetings. However, the statement of the Chairman of the Drafting Committee is reflected in the summary records of the Commission which are published in the Commission’s Yearbook.

^[68] Document A/CN.4/1 (United Nations publication, Sales No. 48.V.1) reissued under the symbol A/CN.4/1/Rev.1 (F) (United Nations publication, Sales No. 48.V.1(1)).

^[72] Most recently, by its resolution 54/111 of 9 December 1999 (E, F, S, R, C, A), the General Assembly encouraged the Commission to proceed with the selection of new topics for its next quinquennium corresponding to the wishes and preoccupations of States and to present possible outlines and related information for new topics to facilitate decision thereon by the Assembly. As a result of the review held at its fifty-second session, in 2000, the Commission has identified a number of topics as appropriate for inclusion in its long-term programme of work. See Official Records of the General Assembly, Fifty-fifth Session, Supplement No. 10 (A/55/10), paras. 726-733. For earlier reviews of the Commission’s programme of work, see Yearbook of the International Law Commission, 1962, vol. II, document A/5209, paras. 24-62; ibid., 1967, vol. II, document A/6709/Rev.1, para. 49; ibid., 1968, vol. II, document A/7209/Rev.1, paras. 95-101; ibid., 1969, vol. II, document A/7610/Rev.1, para. 91; ibid., 1970, vol. II, document A/8010/Rev.1, para. 87; ibid., 1971, vol. II (Part One), document A/8410/Rev.1, paras. 119-128; ibid., 1972, vol. II, document A/CN.4/254; ibid., 1973, vol. II, document A/9010/Rev.1, paras. 134-176; ibid., 1977, vol. II (Part Two), paras. 96-111; ibid., 1992, vol. II (Part Two), paras. 368-370; ibid., 1995, vol. II (Part Two), paras. 498-503; ibid., 1996, vol. II (Part Two), paras. 244-248 and annex II; ibid., 1997, vol. II (Part Two), para. 238; and ibid., 1998, vol. II (Part Two), paras. 551-554.

^[73] The topics may be drawn from the list of possible future topics identified by the Commission in 1996 or suggested by members of the Commission.

^[75] See Yearbook of the International Law Commission, 1996, vol. II (Part Two), paras. 148 (a) and 165. For the consideration of the long-term programme of work in accordance with this procedure in subsequent years, see ibid., 1997, vol. II (Part Two), para. 238; ibid., 1998, vol. II (Part Two), paras. 551-554; ibid., 1999, vol. II (Part Two), para. 642; ibid., Fifty-fifth Session, Supplement No. 10 (A/55/10), paras. 726-733; ibid., Fifty-seventh Session, Supplement No. 10 (A/57/10), para. 521; ibid., Fifty-eighth Session, Supplement No. 10 (A/58/10), para. 439; and ibid., Fifty-ninth Session, Supplement No. 10 (A/59/10), para. 363.

^[77] Document A/CN.4/1 (United Nations publication, Sales No. 48.V.1) reissued under the symbol A/CN.4/1/Rev.1 (F) (United Nations publication, Sales No. 48.V.1(1)).

^[78] At its fourth session, in 1952, the Commission decided, in accordance with a suggestion of the Special Rapporteur, to use the term “territorial sea” in lieu of “territorial waters”.

^[79] At its fifty-third session, in 2001, the Commission decided to amend the title of the topic to “Responsibility of States for internationally wrongful acts.”

^[80] The sub-topic was originally entitled “Succession of States in respect of rights and duties resulting from sources other than treaties.” The Commission adopted the new title to read as above at its twentieth session, in 1968.

^[81] The third sub-topic has never been the subject of substantive consideration by the Commission.

^[82] The first two topics have never been the subject of substantive consideration by the Commission. The remaining two topics were the subject of partial consideration by the Commission. The topic “Treatment of aliens” was partially considered by the Commission in the course of its work on the topic “State responsibility”, but this work was discontinued. It is currently being considered, to some extent, by the Commission in connection with its work on the topics “Diplomatic protection” and "Expulsion of aliens". With respect to the topic “Right of asylum,” at the Commission’s first session, in 1949, during the discussion of the draft Declaration on Rights and Duties of States, a proposal was submitted to include in the draft Declaration an article relating to the right of asylum. It was finally decided not to include such an article. See Yearbook of the International Law Commission, 1949, Report to the General Assembly, para. 23. At a later stage, the topic was specifically referred to the Commission by the General Assembly. In resolution 1400 (XIV) of 21 November 1959 (E, F, S, R, C, A), the General Assembly requested the Commission, as soon as it considered it advisable, to undertake the codification of the principles and rules of international law relating to the right of asylum. The Commission took note of the General Assembly resolution and decided to defer further consideration of this question to a future session. See Yearbook of the International Law Commission, 1960, vol. II, document A/4425, para. 39. At its twenty-ninth session, in 1977, the Commission concluded that the topic did not appear at that time to require active consideration by the Commission in the near future. See Yearbook of the International Law Commission, 1977, vol. II (Part Two), para. 109.

^[83] This topic was considered by the Commission in accordance with article 24 of its Statute.

^[84] The Commission, at its thirty-ninth session, in 1987, recommended to the General Assembly that the title of the topic in English be amended to read “Draft Code of Crimes against the Peace and Security of Mankind” in order to achieve greater uniformity and equivalence between different language versions. The General Assembly agreed with this recommendation in resolution 42/151 of 7 December 1987 (E, F, S, R, C, A).

^[85] At its twentieth session, in 1968, the Commission decided to amend the title of the topic, without altering its meaning, by changing the word “intergovernmental” to “international.”

^[87] The Commission initially considered this subject under the topic of ad hoc diplomacy, following the submission of the Commission’s final draft on diplomatic intercourse and immunities in 1958.

^[88] This topic was preliminarily considered by the Commission under an agenda item entitled “Proposals on the elaboration of a protocol concerning the status of the diplomatic courier and the diplomatic bag not accompanied by diplomatic courier.”

^[89] In resolution 32/48 of 8 December 1977 (E, F, S, R, C, A), the Assembly requested the Secretary-General to prepare a report on the techniques and procedures used in the elaboration of multilateral treaties. Also in that resolution, the General Assembly, bearing in mind the important contribution of the Commission to the preparation of multilateral treaties, provided for the participation of the Commission in the review in question. The Commission was invited, as were Governments, to submit its observations on the subject for inclusion in the Secretary-General’s report. Pursuant to that invitation, the Commission considered the subject at its thirtieth and thirty-first sessions, in 1978 and 1979, respectively. See Yearbook of the International Law Commission, 1979, vol. II (Part Two), paras. 184-195. Its observations were transmitted to the Secretary-General in 1979 in the Commission’s document entitled “Report of the Working Group on review of the multilateral treaty-making process.” See Yearbook of the International Law Commission, 1979, vol. II (Part One), document A/CN.4/325.

^[90] This topic was originally entitled “The law and practice relating to reservations to treaties.” At its forty-seventh session, in 1995, the Commission concluded that the title of the topic should be amended to read as above.

^[91] The Commission’s study on the topic has proceeded under this title following the completion by the Commission of the preliminary study of the topic “State succession and its impact on the nationality of natural and legal persons” at its forty-eighth session, in 1996.

^[92] The topic was originally entitled “Risks ensuing from fragmentation of international law.” At its fifty-fourth session, in 2002, the Commission decided to change the title of the topic to read as above. In addition to the last three topics listed above, the Commission identified two other topics as appropriate for inclusion in its long-programme of work, “Effect of armed conflict on treaties” (amended at its fifty-sixth session, in 2004, to read "Effects of armed conflicts on treaties") and “Expulsion of aliens,” at its fifty-second session, in 2000. See Official Records of the General Assembly, Fifty-fifth Session, Supplement No. 10 (A/55/10), para. 729 and annex. The Commission noted that topics relating to corruption and humanitarian protection were worthy of further consideration at its next quinquennium. The Commission also took note of a number of useful preliminary studies on the subject of the environment, indicated that it was desirable to have a more integrated approach to feasibility studies in the field of the environment and concluded that any decision about further work in this area should be deferred until the next quinquennium. Ibid., paras. 732-733.

^[93] The topic was a follow-up to the topic of diplomatic intercourse and immunities (topic (k) in the 1949 list above).

^[94] The topic was a follow-up to the topic of the law of the sea (see above).

^[95] The topic was also a follow-up to the topic of diplomatic intercourse and immunities.

^[96] The topic was a follow-up to the topic of the law of treaties (topic (j) in the 1949 list above).

^[97] The topic was also a follow-up to the topic of the law of treaties.

^[98] The topic was a follow-up to the topic of State responsibility (topic (m) in the 1949 list above).

^[99] This topic was referred to the Commission by the General Assembly for the further development and concretization of international diplomatic law (General Assembly resolutions 31/76 of 13 December 1976 (E, F, S, R, C, A) and 33/139 (E, F, S, R, C, A) and 33/140 (E, F, S, R, C, A) of 19 December 1978).

^[100] The Commission undertook work on this topic in order to address the ambiguities and gaps in the provisions concerning reservations to treaties contained, in particular, in the Vienna Convention on the Law of Treaties which was based on the Commission’s earlier draft articles on the law of treaties.

^[101] These topics were partially considered by the Commission in the course of its work on State responsibility. In addition, some aspects of the subject of responsibility of international organizations were examined in the course of the Commission’s work on the second part of the topic “Relations between States and international organizations,” dealing with the status, privileges and immunities of international organizations and their personnel.

^[102] This topic relates to some extent to the Commission’s previous work on the law of the non-navigational uses of international watercourses.

^[104] The topic (i) has never been the subject of substantive consideration by the Commission. The work on the other two topics (h) and (t) was discontinued by the Commission before any final report was produced.

^[105] See the report of the Committee on the Progressive Development of International Law and its Codification, Official Records of the General Assembly, Second Session, Sixth Committee, Annex 1, paras. 7-9. See also article 15 of the Statute of the Commission.

^[111] For example, Governments may be requested to furnish the texts of laws, decrees, judicial decisions, treaties, diplomatic correspondence and other relevant documents under article 19 of the Statute.

^[113] At the Commission’s request or on his initiative, the Special Rapporteur’s initial presentation may be of a general and exploratory character, in the form of a working paper or preliminary report. See Yearbook of the International Law Commission, 1979, vol. II (Part One), document A/CN.4/325, para. 39.

^[114] The content of the commentary to draft articles is addressed in article 20 of the Statute.

^[117] The commentaries are amended to explain the final version of the draft articles, including the solutions adopted with respect to any controversial issues, and updated to include the most recent precedents.

^[119] The General Assembly may refer drafts back to the Commission for reconsideration or redrafting under article 23, paragraph 2, of the Statute. The General Assembly took such action with respect to the draft articles on arbitral procedure submitted by the Commission to the General Assembly in 1953 (General Assembly resolution 989 (X) of 14 December 1955 (E, F, S, R, C, A)). In addition, the General Assembly, in resolution 53/98 of 8 December 1998 (E, F, S, R, C, A), invited the Commission to present any preliminary comments it might have regarding outstanding substantive issues related to the draft articles on the jurisdictional immunities of States and their property, in the light of the results of the informal consultations held pursuant to General Assembly decision 48/413 of 9 December 1993, and taking into account the developments of State practice and other factors related to this issue since the adoption of the draft articles by the Commission in 1991.

^[120] See, for instance, Yearbook of the International Law Commission, 1951, vol. I. pp. 123 and 132-135; ibid., 1953, vol. II, document A/2456, para. 54; ibid., 1956, vol. II, document A/3159, paras. 25 and 26; ibid., 1961, vol. II, document A/4843, para. 32; ibid., 1966, vol. II, document A/6309/Rev.1, para. 35; ibid., 1967, vol. II, document A/6709/Rev.1 and Rev.1/Corr.l, para. 23; ibid., 1971, vol. II (Part One), document A/8410/Rev.l, para. 50; ibid., 1974, vol. II (Part One), document A/9610/Rev.1, para. 83; ibid., 1978, vol. II (Part Two), para. 72; ibid., 1982, vol. II (Part Two), para. 55 and ibid., 1996, vol. II (Part Two), paras. 156 and 157.

^[121] These drafts, later included in the all-embracing draft on the law of the sea, became the basis for two conventions adopted by the first United Nations Conference on the Law of the Sea (1958).

^[122] The recommendation of the Commission was implicit in the identical provision of article 12 of the two draft conventions on the subject submitted to the General Assembly, which read: “The present Convention, having been approved by the General Assembly, shall. . . be open for signature. . . and shall be ratified.”

^[123] The Commission recommended to the General Assembly that appropriate measures be taken for the conclusion of a convention on special missions.

^[124] The Commission recommended that a convention be elaborated by the Assembly or an international conference of plenipotentiaries.

^[125] The Commission recommended that the General Assembly elaborate a convention.

^[126] With respect to the topic “Ways and means for making the evidence of customary international law more readily available,” no recommendation by the Commission in accordance with article 23, para. 1, of the Statute was required because of the nature of the work on the topic.

^[127] See, for example, the discussion at the Commission’s first session concerning the procedure to be followed in its work on the draft Declaration on Rights and Duties of States, in Yearbook of the International Law Commission, 1949, Report to the General Assembly, para. 53. The General Assembly, in taking note of the draft Declaration and in commending it to the continuing attention of Member States and jurists of all nations (resolution 375 (IV) of 6 December 1949 (E, F, S, R, C)), appeared to accept without question the thesis stated in the Commission’s report that it was within the competence of the Commission to adopt such procedure as it might deem conducive to the effectiveness of its work in respect of a special assignment even though such procedure differed from the procedures set forth in the Statute for progressive development or codification. See Yearbook of the International Law Commission, 1949, Report to the General Assembly, para. 53. See also Yearbook of the International Law Commission, 1977, vol. II (Part Two), paras. 116 and 117.

^[129] With respect to the draft Statute for an International Criminal Court submitted by the Commission to the General Assembly in 1994, the Commission recommended that the General Assembly convene an international conference of plenipotentiaries to study the draft Statute and to conclude a convention on the establishment of an international criminal court. With respect to the draft Code of Crimes against the Peace and Security of Mankind submitted by the Commission to the General Assembly in 1996, the Commission recommended that the General Assembly select the most appropriate form which would ensure the widest possible acceptance of the draft Code.

^[130] In this year, the Commission submitted its report containing the final text of the draft Statute for an International Criminal Court.

^[131] At its twenty-ninth session, in 1977, the Commission, stated its intention to keep constantly under review the possibility of improving its method of work and procedures in the light of the specific features presented by the individual topics under consideration. See Yearbook of the International Law Commission, 1977, vol. II (Part Two), para. 120. This was reiterated at the Commission’s thirty-first session, in 1979, when the Commission conducted a comprehensive review of its methods of work, while preparing its observations on the item “Review of the multilateral treaty-making process,” as well as at its next session, in 1980. See Yearbook of the International Law Commission, 1979, vol. II (Part One), document A/CN.4/325, para. 16, and ibid., 1980, vol. II (Part Two), para. 185, respectively.

^[132] See Yearbook of the International Law Commission, 1979, vol. II (Part One), document A/CN.4/325, para. 16. However, in 1973, the Commission noted that “whatever improvements it may be possible to make in the methods of work of the Commission, it is clear that there is an inbuilt periodicity at work that places certain limits on the Commission’s ability to respond promptly to urgent requests.” See Yearbook of the International Law Commission, 1973, vol. II, document A/9010/Rev.1, para. 166.

^[138] See General Assembly resolution 3495 (XXX) of 15 December 1975 (E, F, S, R, C, A).

^[139] As mentioned previously, the Commission’s current practice is to establish the Planning Group as a subsidiary body of the Commission.

^[148] See General Assembly resolution 52/156 of 15 December 1997 (E, F, S, R, C, A).

^[149] See Rule 161 of the rules of procedure of the General Assembly.

^[152] See rule 51 of the rules of procedure of the General Assembly.

^[154] See Yearbook of the International Law Commission, 1979, vol. II (Part One), document A/CN.4/325, para. 8. See also rules 108 (Quorum), 125 (Majority required) and 126 (Meaning of the phrase “members present and voting”) of the rules of procedure of the General Assembly.

^[160] As discussed further below.

^[161] The Commission’s report on its first session and as of its twenty-first session is published as Supplement No. 10 of the Official Records of the General Assembly. The Commission’s report on its second session was published as Supplement No. 12 and on its third to twentieth sessions as Supplement No. 9 of the Official Records of the General Assembly. The report is subsequently published in the Yearbook of the International Law Commission (volume II, except for the 1949 Yearbook which consists of only one volume) together with a check-list of the documents issued during the session.

^[163] The summary records of Commission meetings are provided in provisional form to its members and are published in final form in the Yearbook of the International Law Commission.

^[164] See General Assembly resolutions 32/151 of 19 December 1977 (E, F, S, R, C, A), 34/141 of 17 December 1979 (E, F, S, R, C, A), 35/163 of 15 December 1980 (E, F, S, R, C, A), 36/114 of 10 December 1981 (E, F, S, R, C, A), 37/111 of 16 December 1982 (E, F, S, R, C, A) and all subsequent resolutions on the annual reports of the Commission to the General Assembly. See also Yearbook of the International Law Commission, 1980, vol. II (Part Two), para. 190.

^[166] Since 1998, many documents of the Commission have been placed on this web site.

^[167] For the Commission’s discussions, see Yearbook of the International Law Commission, 1977, vol. II (Part Two), paras. 124-126; ibid., 1980, vol. II (Part Two), paras. 191 and 192; ibid., 1982, vol. II (Part Two), para. 271; Official Records of the General Assembly, Fifty-eighth Session, Supplement No. 10 (A/58/10), paras. 440-443; and Official Records of the General Assembly, Fifty-ninth Session, Supplement No. 10 (A/59/10), paras. 366-367.

^[169] The Commission indicated its understanding that regulations on the preparation of documents on the basis of Governments’ replies to a questionnaire or of submissions of the agencies and programmes of the United Nations do not affect the obligation of the Secretary-General under the Statute to publish in extenso, and in the languages of the Commission, all such replies whenever the work of the Commission and its procedures and methods so require. See Yearbook of the International Law Commission, 1980, vol. II (Part Two), para. 191.

^[173] See General Assembly resolutions 32/151 of 19 December 1977 (E, F, S, R, C, A), 34/141 of 17 December 1979 (E, F, S, R, C, A), 35/163 of 15 December 1980 (E, F, S, R, C, A), 36/114 of 10 December 1981 (E, F, S, R, C, A), 37/111 of 16 December 1982 (E, F, S, R, C, A), 38/138 of 19 December 1983 (E, F, S, R, C, A) and all subsequent resolutions on the annual report of the Commission to the General Assembly.

^[174] The Commission referred to the following documentation: its annual reports, the reports of Special Rapporteurs as well as various related research projects, studies and other working documents (see Analytical Guide).

^[175] See Official Records of the General Assembly, Fifty-eighth Session, Supplement No. 10 (A/58/10), paras. 440-442.

^[176] See Official Records of the General Assembly, Fifty-eighth Session, Supplement No. 10 (A/58/10), para. 443.

^[177] See Yearbook of the International Law Commission, 1982, vol. II (Part Two), para. 271. Subsequently confirmed in Official Records of the General Assembly, Fifty-eighth Session, Supplement No. 10 (A/58/10), para. 443.

^[178] General Assembly resolution 3071 (XXVIII) of 30 November 1973 (E, F, S, R, C, A).

^[179] General Assembly resolution 3315 (XXIX) of 14 December 1974 (E, F, S, R, C, A).

^[180] See Yearbook of the International Law Commission, 1986, vol. II (Part Two), para. 252 and General Assembly resolution 41/81 of 3 December 1986 (E, F, S, R, C, A).

^[186] See Official Records of the General Assembly, Fifty-sixth session, Supplement No. 10 (A/56/10), para. 260.

^[188] See Yearbook of the International Law Commission, 1949, Report to the General Assembly, para. 40; ibid., 1950, vol. II, document A/1316, para. 22; ibid., 1951, vol. II, document A/1858, para. 91; ibid., 1952, vol. II, document A/2163, para. 55; ibid., 1953, vol. II, document A/2456, para. 173; ibid., 1954, vol. II, document A/2693, para. 79; and ibid., 1955, vol. II, document A/2934, para. 29. The Commission initially decided to hold its sixth session in Geneva. However, this session was held in Paris. See Yearbook of the International Law Commission, 1954, vol. II, document A/2693, para. 1.

^[189] See Yearbook of the International Law Commission, 1953, vol. II, document A/2456, para. 173; and ibid., 1955, vol. II, document A/2934, para. 26.

^[191] General Assembly resolution 984 (X) of 3 December 1955 (E, F, S, R, C, A).

^[192] See Official Records of the General Assembly, Fifty-fifth Session, Supplement No. 10 (A/55/10), para. 734.

^[193] The procedure to be followed in such cases is set forth in article 17, paragraph 2, of the Statute.

^[194] See Yearbook of the International Law Commission, 1980, vol. II (Part Two), para. 191. The Commission has emphasized the importance of the written comments submitted by Governments in response to the Commission’s requests on particular topics as an indispensable part of the dialogue between the Commission and Governments. See Yearbook of the International Law Commission, 1999, vol. II (Part Two), para. 616.

^[198] See, for instance, General Assembly resolution 52/156 of 15 December 1997 (E, F, S, R, C, A) and subsequent resolutions on the report of the International Law Commission.

^[199] Until 1979, the relevant reports of the Sixth Committee to the General Assembly contained a summary of the main trends of the discussion in that Committee of the reports of the International Law Commission. For practical reasons, the summary has, since 1980, been issued as part of the Commission’s documentation and entitled “topical summaries”.

^[200] The General Assembly has usually taken the action recommended by the Commission with respect to its final products on the various topics and special assignments with the exception of the draft articles on arbitral procedure submitted by the Commission in 1953, most-favoured-nation clauses and status of the diplomatic courier and the diplomatic bag not accompanied by diplomatic courier. The Commission has recognized that whether a particular set of draft articles is acceptable or appropriate for adoption at a given time is essentially a matter of policy for States. See Yearbook of the International Law Commission, 1996, vol. II (Part Two), para. 182.

^[201] See Yearbook of the International Law Commission, 1992, vol. II (Part Two), para. 373. The Commission has extended its practice of highlighting the issues on which comment is specifically sought in a special chapter of its annual report to the General Assembly devoted to specific issues on which comments would be of particular interest to the Commission. See Yearbook of the International Law Commission, 1999, vol. II (Part Two), para. 614. This practice has been endorsed by the General Assembly which has requested the Commission to continue to pay special attention to indicating in its annual report for each topic, those specific issues, if any, on which expressions of views by Governments, either in the Sixth Committee or in written form, would be of particular interest in providing effective guidance for the Commission in its future work. See, for instance, General Assembly resolution 44/35 of 4 December 1989 (E, F, S, R, C, A) and subsequent resolutions on the report of the International Law Commission.

^[202] See Yearbook of the International Law Commission, 1977, vol. II (Part Two), para. 130 and Official Records of the General Assembly, Fifty-eighth Session, Supplement No. 10 (A/58/10), para. 445. In 1996, the Commission recommended that the issues on which comment is specifically sought from the Sixth Committee should be identified, if possible, before the adoption of draft articles on the point and these issues should be of a more general, “strategic” character rather than issues of drafting technique. See Yearbook of the International Law Commission, 1996, vol. II (Part Two), paras. 148 (c) and 181. In 2003, the Commission further noted that Special Rapporteurs may wish to provide sufficient background and substantive elaboration to better assist Governments in developing their responses. See Official Records of the General Assembly, Fifty-eighth Session, Supplement No. 10 (A/58/10), para. 446.

^[203] This information is included in the resolution adopted by the General Assembly on the agenda item relating to the Commission’s annual report.

^[204] General Assembly resolution 44/35 of 4 December 1989 (E, F, S, R, C, A).

^[205] General Assembly resolutions 55/152 of 12 December 2000 (E, F, S, R, C, A); 56/82 of 12 December 2001 (E, F, S, R, C, A), and 57/21 of 19 November 2002 (E, F, S, R, C, A).

^[206] Some of the changes have been instituted by the Sixth Committee based on the suggestions made by the Commission. See, for instance, Yearbook of the International Law Commission, 1977, vol. II (Part Two), paras. 127-129; ibid., 1988, vol. II (Part Two), paras. 581 and 582; and ibid., 1989, vol. II (Part Two), para. 742.

^[207] This was one of the recommendations made by the Ad Hoc Working Group of the Sixth Committee established at the forty-third session of the General Assembly, in 1988, to deal with the question of improving the ways in which the report of the Commission was considered in the Committee, with a view to providing effective guidance for the Commission in its work. The Working Group’s conclusions were summarized in the oral report of its Chairman to the Sixth Committee (see document A/C.6/43/SR.40, paras. 10-18). The relevant paragraphs of the summary record of the 40^th meeting of the Sixth Committee are reproduced in the topical summary of the forty-third session of the General Assembly (see document A/CN.4/L.431 (E, F), annex 2).

^[208] Resolutions 43/169 (E, F, S, R, C, A), 44/35 (E, F, S, R, C, A), 45/41 (E, F, S, R, C, A), 46/54 (E, F, S, R, C, A), 47/33 (E, F, S, R, C, A), 48/31 (E, F, S, R, C, A) and 49/51 (E, F, S, R, C, A).

^[209] The report of the Sixth Committee on the agenda item relating to the report of the International Law Commission, which indicates the relevant documentation, is published in the Official Records of the General Assembly for each session. Relevant information may also be found on the web site of the Sixth Committee. See www.un.org/law/cod/sixth.

^[210] In some situations, a topic relating to the work of the Commission may be considered by the General Assembly as a separate agenda item and be the subject of a separate resolution or decision. For example, a topic on which the Commission has already submitted a final report to the General Assembly would not be covered in its subsequent annual reports to the General Assembly. Therefore, the consideration of this topic by the General Assembly would be provided for under a separate agenda item until the Assembly has concluded its consideration of the topic.

^[216] For example, the Codification Division assisted the Commission in the review of its long-term programme of work by preparing surveys on international law in 1949 and 1971, as discussed above.