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” of 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 of 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 of 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 organizations) • 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 official 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; Regime of territorial waters; 6. 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, 1 seat in rotation Asian or Latin America, 1 seat in rotation
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)
15 th Session, 1963 63rd Session, 2011 ILC Sessions • Meets in Geneva • Twelve week session each year • Divided into two parts (typically April-June, July-August)
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
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