Introduction to the International Law Commission Seminar on - - PowerPoint PPT Presentation

Introduction to the International Law Commission

Seminar on International Courts LAW 738 -- Fall 2012 John Heywood and Chris Brantley Professors

Discussion Topics/Themes

• Where does Int’l law come from? (what

comprises the “legislative” function in the int’l system?)

• Should focus be on codification of existing

state practice or “progressive development”

• f int’l legal solutions to pressing issues?

UN Charter, Art. 13(1)

“The General Assembly shall initiate studies and make recommendations for the purpose of: (a) promoting international cooperation in the political field and encouraging the progressive development

• f international law and

its codification.”

General Assembly Resolution 94(1) 11 December 1946

• Title: “Progressive Development of Int’l Law

and Its Codification”

• Established a committee of 17 members

(nations) appointed by General Assembly, each to have one representative.

• Tasked to study and report on “The methods

by which the General Assembly should encourage the progressive development of int’l law and its eventual codification.”

General Assembly Resolution 174(II) 21 November 1947

• Title: “Establishment of the International Law

Commission”

• “Recognizing the desirability of establishing a

commission composed of persons of recognized competence in international law and representing as a whole the chief forms of civilization and the basic legal systems of the world.”

• Provided statute for the “International Law

Commission”

ILC Scope/Mission (Art. 1)

“1) The International Law Commission shall have for its object the promotion of the progressive development of international law and its codification.” “2) The Commission shall concern itself primarily with public international law, but it is not precluded from entering the field of private international law.”

Definitions (Art. 15)

• Progressive Development: “the preparation
• f draft conventions on subjects which have

not yet been regulated by international law or in regard to which the law has not yet sufficiently developed in the practice of states.”

• Codification: “The precise formulation and

systemization of rules of international law in fields where there already has been extensive state practice, precedent and doctrine.”

Methodology

• Appoint Rapporteur to topic
• Formulate plan of action: “Programme of Work”
• Circulate questionnaire to governments
• Form drafting committee
• Consult with experts (including scientific
• rganizations)
• Consider drafts presented by Rapporteur
• Request the UN Secretary-General to issue a

proposal as an ILC document

Topic Initiation

• ILC can set its own agenda regarding

codification of existing law, but must give priority to GA requests (Art. 18).

• Topics involving “progressive development”

must be approved by the General Assembly:

– Referral by General Assembly (Art. 16) – Referral by UN Members, qualified agencies and

• fficial bodies established by intergovernmental

agreement (Art. 17)

Initial 1949 “Codification” Agenda

1. Recognition of States and Governments; 2. Succession of States and Governments; 3. Jurisdictional immunities of States and their property; 4. Jurisdiction with regard to crimes committed outside national territory; 5. Regime of the high seas; 6. Regime of territorial waters; 7. Nationality, including statelessness; 8. Treatment of aliens; 9. Right of asylum;

• 10. Law of treaties;
• 11. Diplomatic intercourse and immunities;
• 12. Consular intercourse and immunities;
• 13. State responsibility; and
• 14. Arbitral procedure.

Later “Codification” Projects

• Draft Declaration on Rights and Duties of States
• Formulation of the Nuremberg Principles
• Question of Defining Aggression
• Draft Code of Offenses Against the Peace and Security of Mankind
• Relations Between States and International Organizations
• Most-favored Nation Clause
• Juridical Regime of Historical Waters
• Protection and Inviolability of Diplomatic Agents and Other Persons Entitled to

Special Protection Under Int’l Law

• Questions of the Status of the Diplomatic Courier and the Diplomatic Bag Not

Accompanied by Diplomatic Courier

• Non-navigational uses of International Waterways
• Nationality in relation to the Succession of States
• Reservations to Treaties
• Diplomatic Protection
• Unilateral Acts of States
• Responsibility of International Organizations
• Fragmentation of Int’l Law: Difficulties Arising from the Diversification and

Expansion of International Law

ILC Composition

• 34 members elected by General Assembly (5 year terms)
• Each U.N. member state nominates up to 4 candidates, only

two nationals

• “persons of recognized competence in international law”
• No two members being nationals of the same state (special

rules for accrediting nationality of dual nationals)

• “…the main forms of civilization and of the principal legal

systems of the world should be assured” (Art. 8)

• 1956 agreement in Sixth Committee on allocation of seats by

UN regional groupings.*

U.S. Rep. is Sean D. Murphy, J.D., Research Professor of Law, George Washington University (B.A., Catholic University; J.D., Columbia University; LL.M., Cambridge University; S.J.D., University of Virginia)

* Agreement on Geographic Distribution of ILC Seats

African 8 seats Asian/Pacific 7 seats Eastern European 3 seats Latin American and Caribbean 6 seats Western European and Other 8 seats African or Eastern European, in rotation 1 seat Asian or Latin America, in rotation 1 seat

ILC Members (2012-2016 Term)

• Asia-Pacific: Ali Mohsen Fetais Al-Marri (Qatar), Mahmoud D. Hmoud (Jordan);
• Mr. Huang Huikang (China); Kriangsak Kittichaisaree (Thailand); Shinya Murase

(Japan); Ki Gab Park (RoKorea); Narinder Singh (India); Nugroho Wisnumurti (Indonesia)

• Western European and Others: Lucius Caflisch (Switzerland), Concepción Escobar

Hernández (Spain); Mathias Forteau (France); Marie G. Jacobsson (Sweden); Donald M. McRae (Canada); Sean D. Murphy (USA); Georg Nolte (Germany); Sir Michael Wood (United Kingdom)

• Eastern European: Kirill Gevorgian (Russia); Ernest Petric (Slovenia); Pavel Šturma

(Czech Republic)

• Africa: Mohammad Bello Adoke (Nigeria); Pedro Comissário Afonso

(Mozambique); Abdelrazeg El-Murtadi Suleiman Gouider (Libya); Hussein A. Hassouna (Egypt); Maurice Kamto (Cameroon); Ahmed Laraba (Algeria); Chris M. Peter (Tanzania); Dire D. Tladi (South Africa); Amos S. Wako (Kenya)

• Latin America/Carribbean: Enrique J.A. Candioti (Argentina); Juan Manuel Gómez-

Robledo (Mexico); Bernd H. Niehaus (Costa Rica); Gilberto Vergne Saboia (Brazil); Eduardo Valencia-Ospina (Columbia); Stephen C. Vasciannie (Kenya)

ILC Sessions

• Meets in Geneva
• Twelve week session each year
• Divided into two parts (typically April-June,

July-August)

15th Session, 1963 63rd Session, 2011

Current ILC Topics

2012 Session (7 May to 1 June & 2 July to 3 August)

• 1. Expulsion of aliens
• 2. The obligation to extradite or prosecute (aut

dedere aut judicare)

• 3. Protection of persons in the event of disasters
• 4. Immunity of State officials from foreign criminal

jurisdiction

• 5. Treaties over time
• 6. The Most-Favoured-Nation clause

For more information:

• ILC offical website

http://www.un.org/law/ilc/

• Wiki on ILC

http://en.wikipedia.org/wiki/International_La w_Commission