Like the judges of the International Court of Justice, the 34 (originally 15) members of the International Law Commission are not representatives of governments. Instead, they are chosen in their individual capacity "as persons of recognized competence in international law" and with due consideration to representation of "the main forms of civilization" and "the principal legal systems of the world." No two members of the commission may be nationals of the same country. They are elected for five-year terms by the General Assembly, from a list of candidates nominated by UN member states.
The members of the International Law Commission do not serve in a full-time capacity on the International Law Commission and need not give up their other professional activities. Until 1997, they met each year, normally in Geneva, for a session of approximately 12 weeks. In 1997, the General Assembly authorized the commission to hold its 50th session in two parts: the first to be held in Geneva from 27 April to 12 June 1998, and the second in New York, from 27 July to 14 August 1998. In 1998 the commission was authorized to convene one 12-week session in 1999, which was held in Geneva. Geneva was again the site in 2000, but the General Assembly saw fit to divide the commission's work into two parts for this, its 52nd session. In 2002, the commission's 54th session was held in two parts, from 29 April to 7 June, and from 22 July to 16 August. The various topics under consideration are usually assigned to individual members, who then serve as special rapporteurs on the item concerned, carry out the necessary studies between sessions, and submit reports to the commission at its annual sessions.
Although the UN Charter does not lay down any principles for determining a desirable "progressive development" of international law, Article 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." From the outset the discussions in the International Law Commission and the General Assembly have made very clear the main considerations involved. The traditional legal norms prevailing at the time of the San Francisco Conference were inherited from an era when world politics was dominated by a handful of Western European nations. As a consequence, international law itself reflected the values and interests of those nations. In essence, therefore, what has been required is an adjustment of the entire international legal order so as to take account of the interests and traditions of a much broader community of nations.
Article 15 of the Statute of the International Law Commission defines "progressive development" as 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. It defines "codification" as meaning the more precise formulation and systemization of rules of international law in fields where there already has been extensive state practice, precedent, and doctrines.
Progressive Development . Under the Statute of the International Law Commission, proposals for the progressive development of international law are not formulated by the commission, but are referred to it by the General Assembly, or by members of the United Nations and other authorized agencies. On the other hand, the commission itself may select topics for codification.
Progressive development of international law is 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 vision of existing rules. Accordingly, the drafters of the statute 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. 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.
Codification . On the other hand, when the commission's task is one of codification (the mere 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. The statute also lays down the specific steps to be taken by the commission in the course of its work on progressive development and on codification.
The commission follows essentially the same method for both progressive development and codification. A "special rapporteur" is appointed for each topic; an appropriate plan of work is formulated; where desirable, governments are requested to furnish the texts of relevant laws, decrees, judicial decisions, treaties, and diplomatic correspondence; the special rapporteur submits reports; the commission approves a provisional draft based on those reports in the form of articles, with a commentary setting forth precedents, any divergence of views, and alternative solutions considered. The provisional draft is issued as a commission document and submitted to the General Assembly, and also to governments for their written observations. On the basis of comments received from governments, together with any comments made in the debates of the Sixth Committee of the General Assembly, the special rapporteur submits a further report, recommending the changes in the provisional draft that seem appropriate. The commission then, on the basis of that report and the comments, adopts a final draft. The final draft is submitted to the General Assembly with a recommendation regarding further action.
Special Assignments . The General Assembly has from time to time requested the International Law Commission to examine particular texts or to report on particular legal problems. For example, at the specific request of the General Assembly, the commission dealt with the following topics: draft declaration on the rights and duties of states (1949); formulation of the Nürnberg principles (1950); questions of international criminal jurisdiction (1950); the question of defining aggression (1951); reservations to multilateral conventions (1951); draft code of offenses against the peace and security of mankind (1951 and 1954); extended participation in general multilateral treaties concluded under the auspices of the League of Nations (1962); question of the protection and inviolability of diplomatic agents and other persons entitled to special protection under international law (1972); and review of the multilateral treaty-making process (1979). The commission's reports on some of these topics were presented in the form of draft articles with commentaries. Conclusions reached on some other topics did not lend themselves to draft articles.
The General Assembly does not assign all legal issues with which it is concerned to the International Law Commission. Thus, the legal aspect of an agenda item that relates to another sphere of the General Assembly's work is often handled by a special committee set up to study that particular subject. This is the case, for example, with the legal aspects of the peaceful uses of outer space and with many matters of human rights and economic and social development. On occasion, too, the General Assembly has established a special committee to consider certain legal topics that directly affect the conduct of nations in the area of international peace and security and are therefore highly political. Thus, the agenda item entitled "Consideration of principles of international law concerning friendly relations and cooperation among states in accordance with the Charter of the United Nations" was assigned to a special 31-member committee. After eight years of discussion, the committee completed a draft declaration, as requested, in time for the commemorative session to celebrate the UN's 25th anniversary in 1970. The declaration embodies seven principles: the nonuse of force, peaceful settlement of disputes, nonintervention, sovereign equality, the duty to cooperate, equal rights and self-determination, and fulfillment of obligations under the charter.
Another example of a legal topic having a strongly political character is the definition of aggression. The International Law Commission originally was asked to draw up a definition of aggression. The task was taken over by the General Assembly only after the commission had failed to reach agreement. A special committee of the General Assembly drafted the text of the Definition of Aggression, which was adopted by the General Assembly in 1974.
Another special committee of the General Assembly drafted the International Convention on the Taking of Hostages, which was adopted in 1979, and still another prepared the draft of what became, after being approved by the General Assembly in 1982, the Manila Declaration on the Peaceful Settlement of International Disputes. A special committee, originally established by the General Assembly in 1977, completed a draft Declaration on the Enhancement of the Effectiveness of the Principle of Refraining from the Threat or Use of Force in International Relations, which the General Assembly approved in 1987. The General Assembly also has established an ad hoc committee to recommend practical measures for elimination of the problem of international terrorism. The committee, in 1979, submitted its final report and recommendations to the General Assembly, which welcomed the results achieved. In 1980, the General Assembly established an ad hoc committee on the drafting of an international convention against the recruitment, use, financing, and training of mercenaries. The committee completed its work in 1989. In the same year, the General Assembly adopted a convention on the subject. In 1993, the General Assembly entrusted an ad hoc committee with the task of elaborating an international convention dealing with the safety and security of United Nations and associated personnel, with particular reference to responsibility for attacks on such personnel. The ad hoc committee held its first session in March–April 1994.
In 1996 the General Assembly established an ad hoc committee to elaborate an international convention for the suppression of terrorist bombings and, subsequently, an international convention for the suppression of acts of nuclear terrorism. This mandate continued to be renewed and revised on an annual basis by the General Assembly in its resolutions on the topic of measures to eliminate inernational terrorism. In December 2001, the ad hoc committee resolved to continue to elaborate a comprehensive convention on international terrorism as a matter of urgency, and to formulate a joint organized response of the international community to terrorism in all its forms and manifestations.
In 2001, the General Assembly established an ad hoc committe for the purpose of considering the elaboration of an international convention against the reproductive cloning of human beings. The ad hoc committee met from 25 February to 1 March 2002 to consider the elaboration of a mandate for the negotiation of such an international convention. It also recommended that the work continue during the 57th session of the General Assembly from 23 to 27 September 2002, within the framework of a working group of the Sixth Committee. Also in 2001, the General Assembly established an ad hoc committe on the scope of legal protection under the Convention on the Safety of United Nations and Associated Personnel, to strengthen and enhance the protective legal regime for United Nations and associated personnel. The ad hoc committee met from 1 to 5 April 2002.
At its first session, in 1949, the commission considered 25 topics for possible study. It selected 14 of these for codification. The list was only provisional, and it was understood that changes might be made after further study by the commission or in compliance with the wishes of the General Assembly. The list, however, still constitutes the commission's basic long-term program of work.
Topics on which the commission has completed its work and submitted final drafts or reports to the General Assembly include the following: rights and duties of states; ways and means for making the evidence of customary international law more readily available; formulation of Nürnberg principles; the question of international criminal jurisdiction; reservations to multilateral conventions; the question of defining aggression; nationality, including statelessness; law of the sea; arbitral procedure; diplomatic intercourse and immunities; extended participation in general multilateral treaties concluded under the auspices of the League of Nations; law of treaties; special missions; relations between states and international organizations; succession of states in respect of treaties; question of protection and inviolability of diplomatic agents and other persons entitled to special protection under international law; the most-favored-nation clause; succession of states in respect of matters other than treaties; question of treaties concluded between states and international organizations or between two or more international organizations; status of the diplomatic courier and the diplomatic bag not accompanied by diplomatic courier; jurisdictional immunities of states and their property; nationality in relation to the succession of states; responsibility of states for internationally wrongful acts; and international liability for injurious consequences arising out of acts not prohibited by international law (prevention of transboundary damage from hazardous activities).
The Sixth Committee itself sometimes functions as a codification body. On two occasions, with regard to the topics "Special Missions" and "Draft Convention on the Prevention and Punishments of Crimes against Diplomatic Agents and other Internationally Protected Persons," the Sixth Committee was assigned the finalization of the relevant conventions. The General Assembly subsequently adopted both conventions.
In 1994, the General Assembly, on the recommendation of the Sixth Committee, established an ad hoc committee to elaborate an international convention dealing with the safety and security of UN personnel. The committee's task was to consolidate, in a single document, the set of principles and obligations contained in existing treaties as well as to codify customary international law. The Sixth Committee also convened in New York in 1995 a United Nations Congress on Public International Law as part of the activities of the UN Decade for International Law (1990–1999).
The commission's conclusions on the question of extended participation in multilateral treaties concluded under the auspices of the League of Nations were submitted to the General Assembly in 1963. On the basis of those conclusions, the General Assembly decided that it was the appropriate organ of the UN to exercise the functions of the League Council with respect to 21 general multilateral treaties of a technical and nonpolitical character concluded under the auspices of the former world body.
The most far-reaching task undertaken by the International Law Commission has been its work on the law of treaties—the laws governing the way in which treaties are to be negotiated, adopted, altered, and abrogated. The commission, which began work on this project in 1949, finally completed it in 1966, after 18 sessions. Throughout this period, the commission regularly submitted provisional draft articles to the General Assembly's Sixth Committee and to individual governments for comment. Accordingly, the final draft of 75 articles adopted by the commission and submitted to the General Assembly's 1966 session included many revisions. At a conference that met in two sessions in Vienna in 1968 and 1969, the Vienna Convention on the Law of Treaties was adopted. It came into force in 1980.
During the preparation of the draft articles on the law of treaties, the commission considered whether the articles should apply not only to treaties between states but also to treaties concluded by other entities, particularly by international organizations. The commission decided to confine its work to treaties between states, but following adoption of the Vienna Convention on the Law of Treaties, it took up, in consultation with the principal international organizations, the question of treaties concluded between states and international organizations or between two or more international organizations.
At a conference that met in Vienna in 1986, the Vienna Convention on the Law of Treaties Between States and International Organizations or Between International Organizations was adopted.
In accordance with its 1949 program, the commission worked for a number of years on the codification of the law of the sea. Following a request of the 1954 General Assembly, the commission grouped together the articles that it had previously adopted and submitted a final draft on the law of the sea in 1956. The General Assembly called a special conference on the law of the sea at Geneva in 1958. At that conference, four conventions were adopted: (1) the Convention on the High Seas, which came into force on 30 September 1962; (2) the Convention on the Continental Shelf, on 24 April 1964; (3) the Convention on the Territorial Sea and the Contiguous Zone, on 10 September 1964; and (4) the Convention on Fishing and Conservation of the Living Resources of the High Seas, on 20 March 1966. (See also the chapter on the Law of the Sea.)
In 1954, the commission prepared two drafts, one for a convention on the elimination of statelessness and another, which would impose fewer obligations on states, on the reduction of statelessness. General Assembly discussions showed that the first and more sweeping draft had no chance of acceptance. Even the measures on which countries would have to agree in order to reduce the number of stateless persons raised so many problems that two special conferences were eventually required, one in 1959 and one in 1961, to arrive at a Convention on the Reduction of State-lessness. It came into force in 1975.
In 1959, the commission adopted final draft articles on diplomatic intercourse and immunities. The General Assembly endorsed the drafts and convened an international conference, which met in Vienna in 1961 and adopted the Vienna Convention on Diplomatic Relations and two optional protocols, one concerning acquisition of nationality and the other compulsory settlement of disputes. The convention adapts to twentieth century requirements the rules for diplomatic intercourse formulated by the 1815 Congress of Vienna, which since that time have essentially governed diplomatic relations. It came into force on 24 April 1964.
Final draft articles on consular relations were submitted by the commission to the General Assembly in 1961. On the basis of these drafts, an international conference, held in Vienna in 1963, adopted the Vienna Convention on Consular Relations and two protocols. It came into force in 1967.
In 1968 and 1969, the General Assembly considered the question of a draft convention on special missions on the basis of draft articles prepared by the commission. On 8 December 1969, the General Assembly adopted the Convention on Special Missions and an optional protocol concerning the compulsory settlement of disputes. The convention, which came into force on 21 June 1985, provides rules applying to forms of ad hoc diplomacy—itinerant envoys, diplomatic conferences, and special missions sent to a state for limited purposes—that are not covered by the Vienna conventions of 1961 and 1963 relating to diplomatic and consular relations among states.
In 1973, the General Assembly adopted the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents, on the basis of draft articles prepared by the commission. The convention's preamble states that crimes against diplomatic agents and other internationally protected persons, jeopardizing their safety, create a serious threat to the maintenance of normal international relations necessary for cooperation among states. It came into force on 20 February 1977.
On the basis of draft articles prepared by the commission, the Vienna Convention on the Representation of States in Their Relations with International Organizations of a Universal Character was adopted in 1975 by an international conference.
Work on the subject of the succession of states was begun by the commission in 1962. Succession of states deals with cases in which dependent territories gain independence, as well as those involving the transfer of territory and the union, dissolution, and separation of states. In 1967, the commission divided the subject into three subtopics: succession in regard to treaties; in regard to matters other than treaties; and in regard to membership of international organizations.
Subsequently, two conferences were convened by the General Assembly to consider the subject on the basis of drafts prepared by the commission. The first conference, held in April 1977 and resumed in August 1978, adopted the Vienna Convention on Succession of States in Respect of Treaties. The second, which met in March–April 1983, adopted the Vienna Convention on Succession of States in Respect of State Property, Archives and Debts. In 1999 the commission adopted draft articles on the nationality of natural persons in relation to the succession of states.
The commission completed its work on this topic in 1991 and recommended that the General Assembly convene an international conference to examine the 22 draft articles and conclude a convention. The Sixth Committee examined the draft articles in a working group in 1992 and 1993 in order to resolve differences of views on some of the substantive issues raised. Then, the General Assembly, in resolution 55/150 of 12 December 2000, decided to establish an ad hoc committee on jurisdictional immunities of states and their property, to further the work done, consolidate areas of agreement and resolve outstanding issues undertaken by the International Law Commission at its 43rd session, and also on discussions of the Sixth Committee. The ad hoc committee was convened at United Nations Headquarters from 4 to 15 February 2002.
In 1992 the UN General Assembly requested that the Commission elaborate a Draft Statute for an International Criminal Court, which could prosecute persons for serious crimes under international law. The commission completed the draft statute in 1994, and included crimes under general international law such as genocide, aggression, serious violations of humanitarian law, crimes against humanity, unlawful seizure of aircraft, apartheid, and hostage taking. The Rome Statute of the International Criminal Court was adopted by a diplomatic conference of pleinpotentiaries on 17 July 1998. The statute was to remain open for signature in Rome until 17 October 1998, after which it remained open for signature at the UN Headquarters in New York until 31 December 2000. The Rome Statute entered into force on 1 July 2002. As of that date, 86 states were parties to the statute.