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Main page > Membership |
Membership
Qualifications and nationality Article 2, paragraph 1, of the Statute provides that the members of the Commission “shall be persons of recognized competence in international law”. The members of the Commission are persons who possess recognized competence and qualifications in both doctrinal and practical aspects of international law. [1] The membership of the Commission often reflects a broad spectrum of expertise and practical experience within the field of international law, including international dispute settlement procedures. Members are drawn from the various segments of the international legal community, such as academia, the diplomatic corps, government ministries and international organizations. [2] Since the members are often persons working in the academic and diplomatic fields with outside professional responsibilities, the Commission is able to proceed with its work not in an ivory tower but in close touch with the realities of international life. [3] As in the case of the judges of the International Court of Justice, the members of the Commission sit in their individual capacity and not as representatives of their Governments. [4] In addition, the members of the Commission cannot be replaced by alternates or advisers. [5] No two members
of the Commission may be nationals of the same State (article
2, paragraph 2). [6] In case
of dual nationality, a person is deemed to be a national of the
State in which he or she ordinarily exercises civil and political
rights (article 2, paragraph 3). Eligibility for election is not
restricted to nationals of Member States of the United Nations,
but no national of any Election The Committee of Seventeen, which recommended the creation of the Commission,
had suggested similarity between the International Court of Justice
and the Commission with regard to the method of election.
[8] The General Assembly,
however, rejected the suggestion for a system of election jointly
by the General Assembly and by the Security Council since the
Court was a special case which should not serve as a precedent
for the appointment of the Commission and the work of codifying
international law was entrusted to the General Assembly under
Article 13 of the Charter of the United Nations.
[9] Instead,
it decided that candidates should be nominated exclusively by
the Governments of States Members of the United Nations and that
the election should be by the General Assembly alone (article
3). Each The Secretary-General sends a letter to the Governments of Member States informing them of the upcoming election, indicating the geographical distribution of seats at the upcoming election, noting the relevant provisions of the Statute, and drawing attention to the deadline for the nomination of candidates. The names of candidates must be submitted in writing to the Secretary-General by the first of June of the election year; in exceptional circumstances a Government may substitute one candidate for another whom it has nominated not later than thirty days before the opening of the General Assembly (article 5). [10] The Secretary-General communicates the names and the curricula vitae of the candidates to Governments of States Members (article 6). The Secretary-General also submits a list of all of the candidates duly nominated to the General Assembly for the purposes of the election (article 7). Article 8 of the Statute (echoing Article 9 of the Statute of the International Court of Justice) provides that at the election the electors shall bear in mind that the persons to be elected to the Commission should individually possess the qualifications required (that is, recognized competence in international law as stated in article 2) and that in the Commission as a whole representation of the main forms of civilization and of the principal legal systems of the world should be assured (article 8). In 1956, the Sixth Committee of the General Assembly reached an agreement regarding the allocation of seats among the regional groups to ensure distribution between different forms of civilization and legal systems in connection with increasing the membership of the Commission from fifteen to twenty-one. [11] In 1961, different views were expressed concerning the continuation of this arrangement when the membership of the Commission was increased from twenty-one to twenty-five. [12] In 1981, the General Assembly decided to amend the Commission’s Statute in order to increase the membership of the Commission from twenty-five to thirty-four and to provide for the election of a maximum number of members for each regional group. [13] Thus, article 9 of the Statute, as amended, provides that the “candidates, up to the maximum number prescribed for each regional group, who obtain the greatest number of votes and not less than a majority of the votes of the Members present and voting shall be elected”. The election is held by secret ballot, with more than one ballot being held if necessary until all members have been elected by the required majority. [14] If more than one national of the same State receives a sufficient number of votes to be elected, then the candidate who receives the largest number of votes or, if the votes are equally divided, the elder or eldest candidate shall be elected (article 9). The Statute provides for a different election procedure to fill a vacancy that occurs during the interval between the regular elections by the General Assembly (the so-called “casual vacancies”). In such a situation, the Commission itself elects the new member to fill the vacancy for the remainder of the term having due regard to the provisions contained in articles 2 and 8 of the Statute (article 11). Vacancies in the membership of the Commission may occur for various reasons, such as death, serious illness, appointment to a new position or election to the International Court of Justice. [15] The Secretariat includes an item concerning the filling of one or more casual vacancies as the first item on the provisional agenda of the Commission. [16] The Secretariat also issues a note announcing the existence of one or more casual vacancies and reproducing the relevant provisions of the Statute in the form of a document of the Commission for general distribution. The Statute
does not provide a nomination procedure for casual vacancies.
In practice, the Secretariat may receive the submission of candidates
from Governments of Member States or members of the Commission.
[17] The Secretariat
gives advance notice to Commission members of the candidatures
received in the form of an information circular which is sent
to members before the opening of the session. The Secretariat
also issues a note containing the list of candidates as well as
the curricula vitae of candidates in the form of a document of
the Commission for general distribution, which is issued as an
addendum to its previous note announcing the vacancy. [18] The Secretariat
list of candidates includes the names of candidates submitted
by a Government of a The date of election is fixed by the Commission following consultations conducted by its Chairman. [20] The Commission elects the new member to fill the vacancy by secret ballot [21] in a private meeting. [22] Since 1981, the Commission has elected members to fill vacancies following the geographical distribution provided for in resolution 36/39 of 18 November 1981 (E, F, S, R, C, A). The Commission holds separate elections to fill vacancies in different regional groups. [23] Votes for candidates not belonging to the regional group for which an election is held or for more candidates than there are vacancies in the regional group are considered invalid. The candidate who receives a majority of the votes of the members who are present and voting is elected. [24] Members who abstain from voting [25] are considered as not voting. [26] When no candidate obtains the majority required as a result of the first ballot, subsequent ballots are held. [27] The Chairman announces the result of the election in a public meeting, which is duly recorded in the summary records. [28] The Chairman notifies the newly-elected members of the election results and invites them to participate in the Commission’s proceedings. In 1955, the General Assembly invited the Commission to give its opinion concerning a proposal to provide that a vacancy should be filled by the Assembly rather than the Commission in the light of the extension of the term of office of members from three to five years. [29] The Commission decided not to recommend such a proposal since the General Assembly meets after the Commission’s session and the vacancy would therefore remain unfilled for at least one session. [30] Size of the Commission The size of the membership of the Commission has been enlarged three times: from fifteen to twenty-one in 1956, under General Assembly resolution 1103 (XI) of 18 December 1956 (E, F, S, R, C, A); to twenty-five in 1961, under Assembly resolution 1647 (XVI) of 6 November 1961 (E, F, S, R, C, A); and to the present thirty-four in 1981, under Assembly resolution 36/39 of 18 November 1981 (E, F, S, R, C, A). [31] Proposals for the enlargement were prompted by the progressive increase in the membership of the United Nations from the original fifty-one to eighty Member States in 1956, 104 Member States in 1961 and 157 Member States in 1981. A large majority of the General Assembly believed that the provision of article 8 of the Statute, requiring “in the Commission as a whole representation of the main forms of civilization and of the principal legal systems”, could be better assured by increasing the size of the Commission. [32] Terms of office and service on a part-time basis Article 10 of the Statute originally provided that the term of office of the members of the Commission should be three years, with the possibility of re-election. However, in practice a longer term has proved beneficial to the progress of the Commission’s work, and the term of office was extended to five years, first on an ad hoc and then on a permanent basis. [33] At its twentieth session, in 1968, the Commission proposed to the General Assembly the extension of the term of office of the Commission’s members from five to six or seven years. In the view of the Commission, the experience had shown that, given the time-consuming nature of the codification process, a period of six or seven years was the minimum required for the completion of a programme of work. [34] The Sixth Committee of the General Assembly has taken note of the proposal and deferred taking a decision on it to a later session. [35] By decision of the General Assembly, the Commission meets only in annual sessions, and its members, unlike judges of the International Court of Justice, do not serve on a full-time, year-round basis, although the Committee of Seventeen recommended that service be full-time. [36] Thus, the Commission is a permanent and part-time subsidiary organ of the General Assembly. [37] Members of the Commission are paid travel expenses and receive a special allowance in accordance with article 13 [38] of the Commission’s Statute. The Chairman, the Special Rapporteurs and the other members of the Commission have historically also been paid honorariums. [39] In compliance with a request by the General Assembly to review the Statute and make recommendations for its revision, the International Law Commission, in 1951, recommended that the Commission should be placed on a full-time basis with a view to expediting its work. [40] When the matter was discussed in the Sixth Committee, however, most delegations believed that it was premature to make so fundamental a change in the structure of the Commission. They felt, inter alia, that a large increase in the Commission’s output would impose an excessive burden on the General Assembly and Governments asked to comment on draft texts; that it would be difficult to find suitable candidates who would accept full-time appointment; and that expense was a serious consideration. [41] Accordingly, the Assembly, in resolution 600 (VI) of 31 January 1952 (E, F, S, R, C), decided not to take any action on the matter for the time being. Suggestions for placing the Commission on a full-time basis have also been made in the debates of the Sixth Committee at various later dates, but have never been acted on by the Assembly. Privileges and immunities At its thirtieth session, in 1978,
the Commission considered it necessary to define better the juridical
status of the Commission at the place of its permanent seat in
[1] See Yearbook of the International Law Commission, 1974, vol. II (Part One), document A/9610/Rev.1, para. 207. [2] In 1976,
a [3] See Yearbook of the International Law Commission, 1974, vol. II (Part One), document A/9610/Rev.1, para. 210. [4] See Yearbook of the International Law Commission, 1979, vol. II (Part One), document A/CN.4/325, para. 4. [5] See Yearbook of the International Law Commission, 1974, vol. II (Part One), document A/9610/Rev.1, para. 210. [6] The Statute
does not address situations in which the nationality of a member
of the Commission changes after the election. In one instance,
the Commission had two members who both became nationals of
the United Arab Republic after the first session of the quinquennium
as a result of the formation of a union between [7] As of 4 December 2003, there were 191 States Members of the United Nations. [8] 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, para. 5. [9] See document A/C.6/193, para. 7. [10] The General Assembly begins its regular session on the Tuesday of the third week in September. Rules of procedure of the General Assembly, rule 1, as amended in 2003. See General Assembly resolution 57/301 of 13 March 2003. [11] See Official Records of the General Assembly, Eleventh Session, Annexes, agenda item 59, document A/3427, para. 13; and ibid., Sixteenth session, Annexes, agenda item 17, document A/4779, paras. 4 and 5. [12] See Official Records of the General Assembly, Sixteenth Session, Annexes, agenda item 77, document A/4939, paras. 9-12; and document A/36/371, paras. 4-6. [13] General
Assembly resolution 36/39 of 18 November 1981 (E,
F,
S,
R,
C,
A)
provides that the members of the Commission shall be elected
according to the following pattern: eight nationals from African
States; seven nationals from Asian States; three nationals from
Eastern European States; six nationals from Latin American States;
eight nationals from Western European and other States; one
national from African States or Eastern European States in rotation;
and one national from Asian States or Latin American States
in rotation. (The name of the regional group of Latin American
States was subsequently changed to Latin American and [14] See rules 92-94 of the rules of procedure of the General Assembly (document A/520/Rev.15). [15] In some instances, the Commission member has given written notice of resignation usually in the form of a letter addressed to the Chairman and transmitted to the Chairman through the Secretary-General of the United Nations. This has often been the case when Commission members have been elected as judges of the International Court of Justice. Commission members have also submitted letters of resignation without indicating a reason. In other instances, the Commission has taken note of the factual events resulting in a vacancy and the Chairman has declared the existence of a vacancy. Even without an express determination by the Commission of the existence of a casual vacancy, the inclusion of such an item on the agenda adopted by the Commission may be seen as an implied determination by the Commission of the existence of a casual vacancy in the membership of the Commission at that particular session. [16] This is the practice when a vacancy occurs before the session, as has often been the case. If a vacancy occurs during the session, the Commission may decide to include an item concerning filling a casual vacancy in the agenda for that session or defer action to the following session. [17] At the fourth session, in 1952, the three persons elected by the Commission to fill casual vacancies were each proposed by a Commission member. The elections were held at public meetings. See Yearbook of the International Law Commission, 1952, vol. I, 136th meeting, paras. 5 and 10, and 183rd meeting, para. 1. At the eleventh session, in 1959, candidates were proposed by Commission members during the election to fill a casual vacancy. In a private meeting at that session, the Commission noted that article 11 of the Statute concerning casual vacancies contains no reference to article 3 requiring nominations by Governments for regular elections and therefore decided that it could consider candidatures submitted by a member of the Commission. The election to fill the casual vacancy was held at a private meeting. At the thirty-seventh session, in 1985, one candidate was proposed by a Commission member. Another individual whose name was put forward by a Commission member sent a letter to the Legal Counsel requesting that his name be withdrawn. The individual’s name did not appear in the list of candidates. The election to fill casual vacancies was again held at a private meeting. [18] The practice of issuing a Secretariat list of candidates began in 1964. Prior to 1964, information on candidatures received was circulated to members of the Commission and an informal list of candidates was prepared by the Secretariat for consideration by Commission members. (At times, the members of the Commission were also informed of candidatures by oral statements made by the Commission’s Secretary.) In accordance with the decision of the Legal Counsel of the United Nations, Mr. Stavropoulos, in 1973, the Secretariat list of candidates contains the following information: names, nationalities and curricula vitae of candidates. The source of submission of the candidates is not indicated in the list. In accordance with the same decision, the Secretariat issues another document setting out the texts of communications received submitting or supporting candidatures in the form of a conference room document of the Commission restricted to Commission members. These communications are usually from Governments. In 1985, the Secretariat also published the text of a communication received from a member of the Commission submitting the name of a candidate. In some instances, information concerning the source of submission of candidates has been provided orally to Governments upon request prior to the election. In 1985, the Legal Counsel, Mr. Fleischhauer, decided that the Secretariat could not follow this practice in a particular case because it was under a constraint of confidentiality due to the request of the member who had submitted the candidature not to disclose its source other than to Commission members prior to the election. [19] There have been instances in which an individual, not a member of the Commission, has proposed himself or another person as a candidate for a casual vacancy. In 1959, a candidate was proposed by an individual who was not a member of the Commission. The Secretariat distributed informally the individual’s curriculum vitae. In a private meeting of the Commission, the Secretary indicated that “The Secretariat had to have some rule to guide it in preparing a list of candidates for the Commission, otherwise the Secretariat might well be embarrassed by a bombardment of candidates from all sources. In his view it was, therefore, desirable that either a government or a member of the Commission should propose a candidate.” At the same meeting, a member of the Commission proposed the individual as a candidate without committing his vote to the candidate. In 1976, the Legal Counsel received a letter from an individual requesting that his name be registered as a candidate for a vacancy and indicating that he would be proposed as a candidate by a particular member of the Commission. The individual’s name was added to the Secretariat list of candidates only after it was put forward by a Government. The Secretariat document circulated to Commission members contained the letter of the Government and not the personal letter of the individual. (There is no record of his name having been put forward by any Commission member.) [20] In practice, the Commission has held elections to fill casual vacancies arising before the opening of its session at various times. The Commission may hold an election to fill a casual vacancy arising during the session at a later time or at its next session. [21] This practice is similar to that of the General Assembly which holds elections by secret ballot. See rule 92 of the rules of procedure of the General Assembly. In 1979, the General Assembly decided that “The practice of dispensing with the secret ballot for elections to subsidiary organs when the number of candidates corresponds to the number of seats to be filled should become standard and the same practice should apply to the election of the President and Vice-Presidents of the General Assembly, unless a delegation specifically requests a vote on a given election.” See rules of procedure of the General Assembly, annex VI, para. 16. The Commission considered the question of following this practice in filling casual vacancies in 1985, 1995 and 2003. In the first instance, the Commission decided to follow the election procedure by secret ballot in a private meeting. In the second and third instances, the Commission decided to follow the acclamation procedure in a private meeting. See Yearbook of the International Law Commission, 1995, vol. I, 2378th meeting, paras. 7-9; and SR. 2770. [22] Before 1954, the Commission filled casual vacancies by election in public meetings after consideration of candidates in private meetings. Since 1954, it has been the Commission’s consistent practice to fill the vacancies by election (or in a few instances by acclamation) in private meetings. There are no summary records of private meetings. [23] In the early years, the Commission normally held a separate election for each vacancy in the alphabetical order of the name of the vacating member. In 1973, the Commission decided to vote together on two vacancies in the same regional group. The same practice was followed in 1985 with respect to three vacancies in the same regional group; a separate election was held to fill a single vacancy in a different regional group. [24] See rule 125 of the rules of procedure of the General Assembly. [25] A blank ballot paper constitutes an abstention. [26] See rule 126 of the rules of procedure of the General Assembly. [27] See rule 132 of the rules of procedure of the General Assembly. [28] The Chairman’s announcement does not mention the results of the ballot or ballots taken at the private meeting nor make reference to the persons considered. No announcement is made until all vacancies have been filled. [29] General Assembly resolution 986 (X) of 3 December 1955 (E, F, S, R, C, A). See also Official Records of the General Assembly, Tenth Session, Annexes, agenda item 50, document A/3028, paras. 21-26. [30] See Yearbook of the International Law Commission, 1956, vol. II, document A/3159, para. 38. See also Official Records of the General Assembly, Eleventh Session, Annexes, agenda item 53, document A/3520, paras. 94-100. [32] See Official Records of the General Assembly, Eleventh Session, Annexes, agenda item 59, document A/3427; ibid., Sixteenth Session, Annexes, agenda item 77, document A/4939; and ibid., Thirty-sixth Session, Plenary Meetings, 63rd meeting, paras. 145-172, and ibid., Annexes, agenda item 137, document A/36/244 and Add.l. [33] By resolution 486 (V) of 12 December 1950 (E, F, S, R, C), the General Assembly extended the term of the Commission’s members elected in 1948 to five years. In 1955, the Commission recommended a formal amendment to article 10 of its Statute, to take effect from 1 January 1957, which was accepted by the General Assembly in resolution 985 (X) of 3 December 1955 (E, F, S, R, C, A). Accordingly, elections have taken place in 1948, 1953, 1956, 1961, 1966, 1971, 1976, 1981, 1986, 1991, 1996 and 2001. [34] See Yearbook of the International Law Commission, 1968, vol. II, document A/7209/Rev.1, para. 98 (a). [35] See Official Records of the General Assembly, Twenty-fourth Session, Annexes, agenda items 86 and 94 (b), document A/7746, para. 117. [36] 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, para. 5 (d). [37] See Yearbook of the International Law Commission, 1979, vol. II (Part One), document A/CN.4/325, para. 4. [38] As amended by General Assembly resolution 485 (V) of 12 December 1950 (E, F, S, R, C). The members of the Commission were paid travel expenses and received a per diem allowance under article 13 of the Statute as originally adopted. In 1950, the General Assembly noted the inadequacy of the emoluments paid to Commission members and decided to amend this provision of the Statute to provide for the payment of travel expenses and a special allowance to Commission members bearing in mind the importance of the Commission’s work, the eminence of its members and the method of their election as well as considering the nature and scope of the Commission’s work which requires its members to devote considerable time in attendance at its necessarily long sessions. [39] The basic
principle governing the payment of honorariums enunciated
by the General Assembly in resolution 2489 (XXIII) of 21 December
1968 (E,
F,
S,
R,
C,
A)
and reaffirmed in resolutions 3536 (XXX) of 17 December 1975
(E,
F,
S,
R,
C,
A)
and 35/218 of 17 December 1980 (E,
F,
S,
R,
C,
A)
was that neither a fee nor any other remuneration in addition
to subsistence allowances at the standard rate would normally
be paid to members of organs or subsidiary organs of the United
Nations unless expressly decided upon by the General Assembly.
Payment of honorariums to the members of the Commission was
authorized by the General Assembly on an exceptional basis,
with the rates being kept under review by the Secretary-General
and occasionally revised. In 1981, the revised rates of honorariums
payable to members of the Commission were as follows: Chairman
— 5,000; other members — 3,000; and Special Rapporteurs who
prepared reports between sessions — an additional 2,500 [40] See Yearbook of the International Law Commission, 1951, vol. II, document A/1858, paras. 60-71. [41] See Official Records of the General Assembly, Sixth Session, Annexes, agenda item 49, document A/2088. [42] The members
of the Commission would be entitled to the privileges and
immunities of experts on mission when the Commission meets
at the United Nations Headquarters in [44] See Yearbook of the International Law Commission, 1979, vol. II (Part Two), paras. 11-13, and General Assembly resolution 34/141 of 17 December 1979 (E, F, S, R, C, A).
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Codification Division, Office of Legal Affairs