In 2018, in its 70th Session, the United Nations International Law Commission [ILC or Commission] adopted two drafts on the subject of sources of international law: Draft Conclusions on the Identification of Customary International Law and Draft Conclusions on Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties. Both topics take the form of “conclusions” that are not intended to be transformed into multilateral treaties. On the topic of Subsequent Agreements and Subsequent Practice in relation to Interpretation of Treaties, the final form of draft conclusions has been described as implying “a guiding function”, with the purpose of serving to reaffirm and to clarify the law, not “aiming at replacing an existing convention or eventually becoming a convention themselves”.Footnote 1 When submitting to the UN General Assembly, the Commission recommended that the General Assembly commend the draft conclusions not only to the attention of states but also to “all who may be called upon to interpret treaties”.Footnote 2 Similarly, in the topic of Identification of Customary International Law, the Commission recommended that the General Assembly commend the draft conclusions to “all who may be called upon to identify rules of customary international law”.Footnote 3
Based on the General Assembly Resolution 174 (II) adopted on 21 November 1947, the ILC was established with a mandate to promote the progressive development of international law and its codification.Footnote 4 Since its establishment, the ILC has prepared and submitted a number of final reports on a variety of topics in a variety of forms. The most representative form of the work of the ILC is draft articles with commentaries, which may become the basis for the conclusion of a treaty. When submitting its drafts, the recommendation of the ILC to the General Assembly was generally to convene a diplomatic conference to conclude a treaty.
However, this tendency seen in the flow of work has gradually changed. On many occasions the ILC has adopted its outcomes in a variety of forms other than draft articles, such as “guidelines”, “principles”, or “conclusions” that are not intended to be transformed into a treaty. Moreover, even when the final form of the topic takes “draft articles”, the ILC has become less inclined to recommend that the General Assembly convoke a conference to conclude a convention. The questions thus arise: What is the reason for the decreasing proportion of draft articles as the final form of the work of the ILC, and what are the implications of the various forms of the work of the ILC for international law? And further, what would be the impact of the changing final form of the ILC's work, for its role in the progressive development of international law and codification?
This paper aims to examine the changing trend in the form of the ILC's work and its implications for international law in order to reflect the role of the ILC for the development of international law. For this purpose, the paper considers the issue from three points: first, the changing trend in the form of the ILC's work and in ILC recommendations; second, the reasons for changing the form of ILC outcomes; and third, the implications of the changing form in relation to the enhanced role of the ILC for the development of international law.
I. THE CHANGING TREND IN THE FORM OF THE ILC'S WORK AND ITS RECOMMENDATIONS
For the last seventy-one years, the ILC has discussed a number of topics according to its object, stipulated in Article 1(1) of its Statute: “progressive development of international law and its codification.” The ILC is not overly constrained by its Statute as to the form that the outcome of its work should take; the only specification is in Article 20 of its Statute, which prescribes that it “prepare its drafts in the form of articles”. Therefore, the ILC has produced outcomes variously entitled, such as “draft articles”, “draft convention”, “draft code”, “draft statute”, “draft principles”, etc. Up to and including the aforementioned two draft conclusions adopted in 2018, the outcomes so far presented by the ILC amount to forty-three.Footnote 5 Among them, twenty-three outcomes take the form of “draft articles”, which constitute a slim majority with 53.5 percent of the total. For the rest, there are two “draft conventions”,Footnote 6 two “draft codes”,Footnote 7 one “model rules”,Footnote 8 one “draft statute”,Footnote 9 three “draft principles” (including “Guiding Principles”),Footnote 10 one “draft declaration”,Footnote 11 one “guideline” (with the title “Guide to Practice”),Footnote 12 two “draft conclusions”,Footnote 13 and seven “reports”.Footnote 14
The ILC outcomes are generally drafted like treaties in the form of “draft articles” to eventually be transformed into treaties.Footnote 15 Perhaps the 1969 Vienna Convention on the Law of Treaties, which is based on the Draft Articles on the Law of Treaties adopted by the ILC in 1966, may be counted as one of the high points of its history. In adopting that draft, the ILC recommended the convening of an international conference of plenipotentiaries to study the draft articles and to conclude a convention on the subject.Footnote 16 In the first quarter century of the ILC's work, the Commission prepared draft articles on the traditional subjects of international law, such as law of the sea, diplomatic and consular relations, and law of treaties, and all such drafts were transformed into treaties.Footnote 17 When submitting its drafts, the recommendation of the ILC to the General Assembly in accordance with Article 23 of its Statute was generally to convene a diplomatic conference to conclude a treaty.Footnote 18
However, this tendency, seen in the flow of work, has gradually changed, and a counter-tendency can be observed which leads the ILC away from providing drafts for formal treaty law.Footnote 19 In the last two decades, no outcome of the Commission's work has been taken up for codification in a multilateral conference.Footnote 20 In particular, the works of the ILC completed after 1999, even those where the topic takes the final form of draft articles, have never been transformed into a treaty.Footnote 21 Moreover, since the adoption of the Draft Articles on Nationality of Natural Persons in Relation to the Succession of States (1999), where “the Commission decided to recommend [to] the General Assembly the adoption, in the form of a declaration”,Footnote 22 it appears that the ILC has become less inclined to recommend that the General Assembly immediately convene a conference to conclude a convention on the basis of its draft articles.Footnote 23
The most well-known topic in this regard might be the Articles for Responsibility of States for Internationally Wrongful Acts (2001). On this topic, the ILC recommended to “the General Assembly that it take note of the draft articles on responsibility of states for internationally wrongful acts in a resolution, and that it annex the draft articles to the resolution”; and further that:
the General Assembly consider, at a later stage, and in the light of the importance of the topic, the possibility of convening an international conference of plenipotentiaries to examine the draft articles on responsibility of states for internationally wrongful acts with a view to adopting a convention on the topic.Footnote 24
Further examination on the question of a convention on the topic, or other appropriate action on the basis of the articles, has been postponed for the moment until 2020, and it is unlikely that this work could be turned into a treaty in the near future.Footnote 25
Instead, on many occasions the ILC has adopted its outcomes in a variety of forms other than draft articles, such as “guidelines”, “principles”, or ‘conclusions”. In other instances, the ILC adopted a “final report” of the working group or study group. For instance, in 2006, the ILC adopted three outcomes that were not described as draft articles, i.e. Draft Principles on the Allocation of Loss in the Case of Transboundary Harm Arising Out of Hazardous Activities, Guiding Principles Applicable to Unilateral Declarations of States Capable of Creating Legal Obligations, and Conclusions of the Work of the Study Group on the Fragmentation of International Law. In 2011, the ILC adopted the Guide to Practice on Reservations to Treaties, which provides a set of guidelines. In 2014 and 2015, the ILC adopted the Final Report of the Working Group on Obligation to Extradite or Prosecute, and the Final Report of the Study Group on Most-Favoured-Nation Clause.
Of course, there had also been a number of ILC outcomes that took a form other than draft articles in the first decade of the ILC, for instance, the Draft Declaration on Rights and Duties of States (1949), Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal (1950), Report on Reservations to Multilateral Conventions (1951), Draft Convention on the Elimination of Future Statelessness (1954), and Draft Code of Offences Against the Peace and Security of Mankind (1954), but such cases are different in the sense that a specific form was proposed by the UN General Assembly or the UN Economic and Social Council when these organs invited the ILC to work on the topics in accordance with Articles 16 and 17 of its Statute.Footnote 26 For instance, on the topic of the Draft Declaration on Rights and Duties of States (1949), by adopting the Resolution 178 (II), the General Assembly “resolves to entrust further study” and “instruct the International Law Commission to prepare a draft declaration on the rights and duties of States”.Footnote 27 However, the topics dealt with in this century are different in the sense that the ILC itself had decided on the form of its outcome, often in the earlier stage of its discussion or by suggestion of the Special Rapporteur, or had changed its form in the course of discussion.Footnote 28
This counter-trend is especially evident in the recent programme of work. As mentioned, in 2018, in its 70th Session, the ILC adopted two “draft conclusions” on the topics of Identification of Customary International Law and Subsequent Agreement and Subsequent Practice in Relation to Interpretation of Treaties. Although there are still important topics that take the form of draft articles, among nine topics listed on the programme of work of the Commission in 2018, the proportion of topics taking the form of draft articles has decreased in relative terms. Unless this changes in future discussions, there are only three topics that take the form of draft articles (Crimes against Humanity, Immunity of State Officials from Foreign Criminal Jurisdiction, Succession of States in Respect of State Responsibility), while other topics take the form of three draft conclusions (Peremptory Norms of General International Law, Identification of Customary International Law, Subsequent Agreement and Subsequent Practice in Relation to Interpretation of Treaties), two draft guidelines (Provisional Application of Treaties, Protection of the Atmosphere), and one draft principles (Protection of the Environment in Relation to Armed Conflicts). In 2019, two topics have been added to the programme of work, namely General Principles of Law and Sea-level Rise in Relation to International Law, the outcomes for which are expected not to take the form of draft articles.Footnote 29
When the outcome takes a form other than draft articles, it generally stresses its non-binding character, as carefully chosen terminologies indicate. For instance, in case of the Guide to Practice on Reservations to Treaties (2011), it was explicitly noted that:
as the title and the word “guidelines” indicate, it is not a binding instrument but a vade mecum, a “toolbox” in which the negotiators of treaties and those responsible for implementing them should find answers to the practical questions raised by reservations.Footnote 30
The commentary to the Draft Principles on the Allocation of Loss in the Case of Transboundary Harm Arising Out of Hazardous Activities (2006) also noted: “[a]s the draft principles are general and residuary in character they are cast as a non-binding declaration of draft principles.”Footnote 31
As a necessary corollary, the recommendations of the ILC to the General Assembly in accordance with Article 23 of its Statute have been not to convoke a conference to conclude a formal treaty law or convention. For instance, in the case of the Draft Principles on the International Liability in Case of Loss from Transboundary Harm Arising Out of Hazardous Activities (2006), the ILC recommended to the Assembly to “endorse the draft principles by a resolution and urge States to take national and international action to implement them”.Footnote 32 In the case of the Guide to Practice on Reservations to Treaties (2011), the Commission recommended to “the General Assembly to take note of the Guide to Practice and ensure its widest possible dissemination”.Footnote 33 In the case of the Guiding Principles Applicable to Unilateral Declarations of States Capable of Creating Legal Obligations (2006), the Commission only “commended the ‘Guiding Principles’ to the attention of the General Assembly”.Footnote 34 In the case of the Draft Conclusions on the Identification of Customary International Law (2018), the Commission recommended that:
the General Assembly
(a) take note in a resolution of the draft conclusions on identification of customary international law, annex the draft conclusions to the resolution, and ensure their widest dissemination;
(b) commend the draft conclusions, together with the commentaries thereto, to the attention of States and all who may be called upon to identify rules of customary international law …Footnote 35
In the case of the Draft Conclusions on Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties (2018), the Commission also made its recommendation using similar phrasing.Footnote 36
Although certain works of the ILC were previously produced in various forms other than draft articles, and were not always recommended for conversion into treaties, such cases were considered the exception rather than the norm.Footnote 37 However, in recent years this practice has become a clear and readily observable tendency. The following questions thus arise: What are the reasons for the ILC's moving away from adopting draft articles as the final form of its work, and what are the implications of the changing form of its work in terms of its role in the development of international law?
II. REASONS FOR THE CHANGING FORM OF THE ILC'S WORK
The changing tendency in the final form of the work of the ILC is a priori related to the topics dealt with in that body. The decreasing share of draft articles as the final form of the work of the ILC is partly due to the completion of a list of topics suitable for codification. In the early years, the ILC devoted itself to providing drafts on the traditional subjects of international law, such as diplomatic and consular relations, and law of treaties.Footnote 38 These topics were ripe for codification, with a substantial body of state practice in existence, on which basis customary rules had been developed with greater or lesser clarity.Footnote 39 Therefore, as noted, “these topics more readily lent themselves to being reduced to a general law-making treaty form”.Footnote 40 However, with most of the topics that were ripe for codification in a provisional list drawn up in 1949 having already been completed,Footnote 41 the topic of state responsibility has been referred to as the last significant area of the great effort to codify international law.Footnote 42
In 1998, the ILC noted that “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” in the selection of the topics.Footnote 43 Development and expansion of topics of international law and the growth of specialized areas have also affected the selection of topics. Indeed, there is an increasing proportion of topics selected by the ILC that are related to human rights law or environmental law.Footnote 44 With less state practice providing concrete customs to codify, the new exploratory areas of international law would require less rigid approaches, not specifying burdensome or excessive obligations upon a state. The present topics in the ILC such as the Protection of the Atmosphere in the form of draft guidelines, the Protection of Environment in Relation to Armed Conflicts in the form of draft principles, and Jus Cogens (Peremptory norms of general international law) in the form of draft conclusions, might be cases in point.Footnote 45 In case of the topic of Protection of Environment in Relation to Armed Conflicts, although the initial proposal by the Special Rapporteur suggested a “draft framework convention” or “statement of principles of rules”Footnote 46 as the final form of outcome, further discussion favouring a non-binding outcome (reflecting the discussion at the Sixth Committee where a number of states supported such an outcome) led to the topic being finally concluded in the form of “draft principles”.Footnote 47
The changing tendency in the final forms of the work of the ILC is also related to the necessity of a flexible approach for enhancing its impacts.Footnote 48 In general, the use of a soft law form is often a compromise between those states that do not favour any regulatory instrument and those that would have preferred the conclusion of a treaty.Footnote 49 This is also the case for the final form of the ILC's work. Adopting a form other than draft articles holds the merit that the ILC may, as the term itself suggests, reserve a certain flexibility in discussion of the subject. Moreover, such forms may be useful for topics where there is difficulty in enforcing harmonization with national laws or where there is insufficient state practice.Footnote 50 Thus, when the draft is considered in the Sixth Committee, states might regard such non-binding forms attractive because they provide more flexibility in implementation.Footnote 51
This may be inferred from the statements delivered by states at the Sixth Committee on topics related to the environment, where a number of states expressed their preference for avoiding phrasing in mandatory terms and stressed the non-binding nature of the draft in creating no specific obligations upon states. For instance, on the topic of the Protection of Atmosphere, India emphasized that:
[w]hile we like the suggestion of cooperative mechanisms, this is however our understanding that the guidelines, when finally adopted, would be available as a material to be followed and used to the suitability of conditions and willingness of States, and not to be implemented, as such, as the treaty provisions … the guidelines are not creating the binding international law themselves.Footnote 52
The Chinese delegation also noted that, whereas China supported the reaffirmation in the present draft guidelines of basic principles of international law such as those on international co-operation and the peaceful settlement of disputes, it noted that “explicit legal obligations placed on States to protect the atmosphere have yet to materialize, and the relevant practice and rules are still being developed”.Footnote 53 On the topic of the Protection of Environment in Relation to Armed Conflicts, the US was concerned that several of the draft principles were phrased in mandatory terms purporting to dictate what states “shall” or “must” do; the US contended that such language was only appropriate with respect to well-settled rules that constitute lex lata, and regarded making binding terms as inappropriate.Footnote 54
Indeed, certain topics that are discussed in a form other than draft articles are often by their nature not suitable for developing into a treaty. There are topics that do not aim for codification, but that provide certain legal views for the expanding and in-depth understanding of international law. The most representative topic in this regard might be Fragmentation of International Law, which takes the form of “Report of the Study Group”. There are also topics that are ineligible for transformation into a treaty as the scope is too narrow. For instance, the topic concerning Reservation to Treaties is related to specific provisions of the Vienna Convention on the Law of Treaties. In such a case, the goal would not be the exploration of a new area that could be comprehensively dealt with by way of an all-inclusive set of rules, but a supplementary guide to resolving a specific issue, in this case, reservations to treaties. As indicated by two topics adopted this year, “conclusions” may be used to shed light on existing practice relating to a specific process.Footnote 55 On the other hand, there are also topics where only overarching approaches are eligible, as the aim is solely to harmonize the existing rules on the subject and not to prescribe or create specific obligation upon states beyond the existing rules. In this regard, it is notable that the preamble of the Draft Guidelines on the Protection of the Atmosphere stresses that the draft guidelines are not intended “to ‘fill’ gaps in treaty regimes nor impose on current treaty regimes legal rules or legal principles not already contained therein”.Footnote 56 Meanwhile, by adopting texts which forestall the possibility of development as binding conventions, the ILC can be more progressive in the development of rules above and beyond the immediate state interests.
III. IMPLICATIONS OF THE CHANGING FORM OF THE ILC'S WORK
The question then follows: What are the implications of the changing form of the work of the ILC? And further: Are differences in the impacts of the work of the ILC presented in the various forms other than draft articles, in terms of the role of the ILC for its commitment in the development of international law?
In the past, Special Rapporteurs mostly insisted on their drafts being recommended to the General Assembly for the conclusion of an international convention, and to see a draft transformed into a convention was considered to be the most prestigious outcome of a drafting exercise.Footnote 57 As a necessary conclusion, “draft articles” were preferred as the final form of the work, and success or failure has largely been measured by whether such a result is achieved. However, it is questionable whether transformation into a treaty could be regarded as the most desirable and successful result of the work of the ILC.Footnote 58 Although the draft provides the basis for negotiation for concluding a convention, its rationale or logic could be modified in the course of a diplomatic conference for negotiations. Details of the work done by the ILC can be amended, according to the interests of powerful states or for immediate practical necessity. Even when a convention has been adopted, it is sometimes not able to enter into force due to insufficient ratification, and such a hesitant response from the international community would weaken its status.Footnote 59 On the other hand, a draft which remains as adopted by the ILC, although it may not be the formal source of international law, may be regarded as an authoritative statement of general international law.Footnote 60
Indeed, although it has not been transformed into multilateral treaties and thus is not counted among the three principal sources of international law in terms of Article 38(1) of the Statute of the International Court of Justice, the work of the ILC stands as far and away the most common source relied upon by the judges of international courts.Footnote 61 Perhaps the Articles on Responsibility of States for Internationally Wrongful Acts (2001) are most frequently used—although not exclusively—in the jurisprudence of international courts.Footnote 62 The Court may consider the ILC drafts to be evidence of customary international law (although the Court conducts its own examination on whether a particular norm has a customary status), clarification of certain legal issues, or the teachings of the most highly qualified publicists of various nations.Footnote 63 However, this kind of impact is not limited to ILC outcomes in the form of draft articles.
In respect of measuring the implications of its outcome, which takes various forms, success or failure of the work of the ILC would not be measured in terms of whether the outcome has been transformed into a treaty with positive responses by states. Furthermore, in the absence of specific measures demonstrating the acceptance of states during the negotiation process, it would be hard to gauge the extent to which states have actually consulted and relied upon the final product of the ILC when such product takes forms other than draft articles. Nonetheless, if an ILC report has been widely cited and referenced by scholars and practitioners, this may in the end influence state practice on the subject. Although not binding, ILC outcomes in the form of principles or guidelines would be referred to as a guide when states need to consider the issues in question, relying upon the authority of the ILC. In such instances, the outcomes of this work would have long-term impact on the development of international law.
No one would deny that the ILC's work on the Fragmentation of the International Law has affected development of the theory of international law, “by suggesting an even more refined look at the types of treaty collision rules, leading to a more sophisticated means for dealing with specialized situations”.Footnote 64 As such, ILC outcomes taking the form of reports may be used to help advance an understanding of key areas of international law.Footnote 65 Indeed, notwithstanding the various forms of the work of the ILC, all work done by the ILC may have its own implications, and various forms other than draft articles should not be regarded as reducing the implications of the Commission's work.
Diversity in the form of the work of the ILC can also be examined in terms of extending the impact of the Commission's work. There are three aspects that can be considered here.Footnote 66 The first is widening the audience. Those works which take the form of guidelines or conclusions aim to influence or to be used beyond the scope of states participating in negotiations for the conclusion of a treaty. For instance, in the case of the Guide to Practice on Reservations to Treaties (2011), it was indicated that “the purpose of the Guide to Practice [is] to provide assistance to practitioners of international law, who are often faced with sensitive problems concerning, in particular, the validity and effects of reservations to treaties”.Footnote 67 There are indeed those for whom the Guide will be of particular utility, such as legal advisers serving ministries of foreign affairs. On the topic of Identification of Customary International Law, the Special Rapporteur stressed that:
the aim of the topic is to offer some guidance to those called upon to apply rules of customary international law on how to identify such rules in concrete cases. This includes, but is not limited to, judges in domestic courts, and judges and arbitrators in specialized international courts and tribunals.Footnote 68
During the debate, there was broad support for the elaboration of a set of conclusions with commentaries, to “serve as a guide to lawyers and judges who are not experts in public international law”.Footnote 69 Accordingly, this year, when submitting to the General Assembly, the Commission recommended for the General Assembly to commend the draft conclusions not only to the attention of states but also to “all who may be called upon to identify rules of customary international law”.Footnote 70 Similarly, on the topic on Subsequent Agreements and Subsequent Practice, the Special Rapporteur noted in his first report that the aim of the discussion is “to give orientation to those who interpret or apply treaties”, including “judges (at the international and the national levels), officials of States and international organizations, academics and other private actors”.Footnote 71 Accordingly, this year, the Commission recommended that the General Assembly “commend the draft conclusions … to the attention of States and all who may be called upon to interpret treaties”.Footnote 72
The second is widening the scope of subject areas. Some have expressed concern that the ILC is not an academic think tank, and exists in order to develop draft treaties.Footnote 73 However, as pointed out in the Report on the Fragmentation of International Law, a unique function of the ILC is its ability to “speak the language of general international law, with the aim to regulate, at a universal level, relationships that cannot be reduced to the realization of special interests and that go further than technical coordination”.Footnote 74 This function would not be fulfilled through draft articles aiming to be transformed into a treaty.Footnote 75 Indeed, by producing varying forms adaptable to an extended scope of subjects, the ILC may remain relevant in the development of international law, and make its existence and function more meaningful.
The third is increasing the comprehensiveness of the topics examined. For instance, in the Guide to Practice on Reservations to Treaties (2011), the ILC attempted to provide a comprehensive approach to the issue of reservations to treaties through a lengthy production amounting to 630 pages including commentaries. Although draft articles may also provide commentaries, such notes would be much more limited in scope, constrained to explanation of the respective provisions. Moreover, by using a non-binding instrument, the ILC was able to address the controversial issues related to treaty reservations, such as “the competence of human rights bodies to assess the validity of reservations to human rights treaties”.Footnote 76 Indeed, this Guide to Practice explicitly noted that “[a]t times, the rules contained in the guidelines are clearly set out de lege ferenda” and “[o]ther rules are simply recommendations and are meant only to encourage”. It went on to explain about the last category of the guidelines that “such provisions would not have been included in a traditional set of draft articles intended to be transformed, if appropriate, into a treaty”.Footnote 77 As noted, many of its provisions are in the nature of recommendations that “would not have been included in a traditional set of draft articles intended to be transformed … into a treaty”.Footnote 78
IV. CONCLUSION
In the early 1980s, in a study conducted by the United Nations Institute for Training and Research [UNITAR] to provoke reconsideration of the Commission's place within the UN system, the ILC was asked to expand its role by using various forms such as restatement or analysis.Footnote 79 The implications of diversity in final forms can be examined in terms of the changing role of the ILC. In its first three decades, the ILC focused on the codification of international law by engaging in providing drafts for treaties. Now the ILC continues to perform its role in aiming at the development of international law by dealing with a wider scope of topics in a variety of forms. The ILC has enhanced its role in the development of international law through the changing final form of its work, by ensuring the flexibility and efficacy of discussion on the topic at hand. By opting for soft-law instruments, the ILC confines the results of its work to an authoritative restatement of legal views, but one that also serves as a practical guide for a non-state audience. This shift reflects larger trends in international law, where flexible approaches to regulation are necessary in order to attract the attention of the international community with regard to the widening scope of international matters. In opting for various forms appropriate for dealing with a wider scope of topics, it is likely that the ILC is envisioning its continuing role for the development of international law.
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In 2018, in its 70th Session, the United Nations International Law Commission [ILC or Commission] adopted two drafts on the subject of sources of international law: Draft Conclusions on the Identification of Customary International Law and Draft Conclusions on Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties. Both topics take the form of “conclusions” that are not intended to be transformed into multilateral treaties. On the topic of Subsequent Agreements and Subsequent Practice in relation to Interpretation of Treaties, the final form of draft conclusions has been described as implying “a guiding function”, with the purpose of serving to reaffirm and to clarify the law, not “aiming at replacing an existing convention or eventually becoming a convention themselves”.Footnote 1 When submitting to the UN General Assembly, the Commission recommended that the General Assembly commend the draft conclusions not only to the attention of states but also to “all who may be called upon to interpret treaties”.Footnote 2 Similarly, in the topic of Identification of Customary International Law, the Commission recommended that the General Assembly commend the draft conclusions to “all who may be called upon to identify rules of customary international law”.Footnote 3
Based on the General Assembly Resolution 174 (II) adopted on 21 November 1947, the ILC was established with a mandate to promote the progressive development of international law and its codification.Footnote 4 Since its establishment, the ILC has prepared and submitted a number of final reports on a variety of topics in a variety of forms. The most representative form of the work of the ILC is draft articles with commentaries, which may become the basis for the conclusion of a treaty. When submitting its drafts, the recommendation of the ILC to the General Assembly was generally to convene a diplomatic conference to conclude a treaty.
However, this tendency seen in the flow of work has gradually changed. On many occasions the ILC has adopted its outcomes in a variety of forms other than draft articles, such as “guidelines”, “principles”, or “conclusions” that are not intended to be transformed into a treaty. Moreover, even when the final form of the topic takes “draft articles”, the ILC has become less inclined to recommend that the General Assembly convoke a conference to conclude a convention. The questions thus arise: What is the reason for the decreasing proportion of draft articles as the final form of the work of the ILC, and what are the implications of the various forms of the work of the ILC for international law? And further, what would be the impact of the changing final form of the ILC's work, for its role in the progressive development of international law and codification?
This paper aims to examine the changing trend in the form of the ILC's work and its implications for international law in order to reflect the role of the ILC for the development of international law. For this purpose, the paper considers the issue from three points: first, the changing trend in the form of the ILC's work and in ILC recommendations; second, the reasons for changing the form of ILC outcomes; and third, the implications of the changing form in relation to the enhanced role of the ILC for the development of international law.
I. THE CHANGING TREND IN THE FORM OF THE ILC'S WORK AND ITS RECOMMENDATIONS
For the last seventy-one years, the ILC has discussed a number of topics according to its object, stipulated in Article 1(1) of its Statute: “progressive development of international law and its codification.” The ILC is not overly constrained by its Statute as to the form that the outcome of its work should take; the only specification is in Article 20 of its Statute, which prescribes that it “prepare its drafts in the form of articles”. Therefore, the ILC has produced outcomes variously entitled, such as “draft articles”, “draft convention”, “draft code”, “draft statute”, “draft principles”, etc. Up to and including the aforementioned two draft conclusions adopted in 2018, the outcomes so far presented by the ILC amount to forty-three.Footnote 5 Among them, twenty-three outcomes take the form of “draft articles”, which constitute a slim majority with 53.5 percent of the total. For the rest, there are two “draft conventions”,Footnote 6 two “draft codes”,Footnote 7 one “model rules”,Footnote 8 one “draft statute”,Footnote 9 three “draft principles” (including “Guiding Principles”),Footnote 10 one “draft declaration”,Footnote 11 one “guideline” (with the title “Guide to Practice”),Footnote 12 two “draft conclusions”,Footnote 13 and seven “reports”.Footnote 14
The ILC outcomes are generally drafted like treaties in the form of “draft articles” to eventually be transformed into treaties.Footnote 15 Perhaps the 1969 Vienna Convention on the Law of Treaties, which is based on the Draft Articles on the Law of Treaties adopted by the ILC in 1966, may be counted as one of the high points of its history. In adopting that draft, the ILC recommended the convening of an international conference of plenipotentiaries to study the draft articles and to conclude a convention on the subject.Footnote 16 In the first quarter century of the ILC's work, the Commission prepared draft articles on the traditional subjects of international law, such as law of the sea, diplomatic and consular relations, and law of treaties, and all such drafts were transformed into treaties.Footnote 17 When submitting its drafts, the recommendation of the ILC to the General Assembly in accordance with Article 23 of its Statute was generally to convene a diplomatic conference to conclude a treaty.Footnote 18
However, this tendency, seen in the flow of work, has gradually changed, and a counter-tendency can be observed which leads the ILC away from providing drafts for formal treaty law.Footnote 19 In the last two decades, no outcome of the Commission's work has been taken up for codification in a multilateral conference.Footnote 20 In particular, the works of the ILC completed after 1999, even those where the topic takes the final form of draft articles, have never been transformed into a treaty.Footnote 21 Moreover, since the adoption of the Draft Articles on Nationality of Natural Persons in Relation to the Succession of States (1999), where “the Commission decided to recommend [to] the General Assembly the adoption, in the form of a declaration”,Footnote 22 it appears that the ILC has become less inclined to recommend that the General Assembly immediately convene a conference to conclude a convention on the basis of its draft articles.Footnote 23
The most well-known topic in this regard might be the Articles for Responsibility of States for Internationally Wrongful Acts (2001). On this topic, the ILC recommended to “the General Assembly that it take note of the draft articles on responsibility of states for internationally wrongful acts in a resolution, and that it annex the draft articles to the resolution”; and further that:
the General Assembly consider, at a later stage, and in the light of the importance of the topic, the possibility of convening an international conference of plenipotentiaries to examine the draft articles on responsibility of states for internationally wrongful acts with a view to adopting a convention on the topic.Footnote 24
Further examination on the question of a convention on the topic, or other appropriate action on the basis of the articles, has been postponed for the moment until 2020, and it is unlikely that this work could be turned into a treaty in the near future.Footnote 25
Instead, on many occasions the ILC has adopted its outcomes in a variety of forms other than draft articles, such as “guidelines”, “principles”, or ‘conclusions”. In other instances, the ILC adopted a “final report” of the working group or study group. For instance, in 2006, the ILC adopted three outcomes that were not described as draft articles, i.e. Draft Principles on the Allocation of Loss in the Case of Transboundary Harm Arising Out of Hazardous Activities, Guiding Principles Applicable to Unilateral Declarations of States Capable of Creating Legal Obligations, and Conclusions of the Work of the Study Group on the Fragmentation of International Law. In 2011, the ILC adopted the Guide to Practice on Reservations to Treaties, which provides a set of guidelines. In 2014 and 2015, the ILC adopted the Final Report of the Working Group on Obligation to Extradite or Prosecute, and the Final Report of the Study Group on Most-Favoured-Nation Clause.
Of course, there had also been a number of ILC outcomes that took a form other than draft articles in the first decade of the ILC, for instance, the Draft Declaration on Rights and Duties of States (1949), Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal (1950), Report on Reservations to Multilateral Conventions (1951), Draft Convention on the Elimination of Future Statelessness (1954), and Draft Code of Offences Against the Peace and Security of Mankind (1954), but such cases are different in the sense that a specific form was proposed by the UN General Assembly or the UN Economic and Social Council when these organs invited the ILC to work on the topics in accordance with Articles 16 and 17 of its Statute.Footnote 26 For instance, on the topic of the Draft Declaration on Rights and Duties of States (1949), by adopting the Resolution 178 (II), the General Assembly “resolves to entrust further study” and “instruct the International Law Commission to prepare a draft declaration on the rights and duties of States”.Footnote 27 However, the topics dealt with in this century are different in the sense that the ILC itself had decided on the form of its outcome, often in the earlier stage of its discussion or by suggestion of the Special Rapporteur, or had changed its form in the course of discussion.Footnote 28
This counter-trend is especially evident in the recent programme of work. As mentioned, in 2018, in its 70th Session, the ILC adopted two “draft conclusions” on the topics of Identification of Customary International Law and Subsequent Agreement and Subsequent Practice in Relation to Interpretation of Treaties. Although there are still important topics that take the form of draft articles, among nine topics listed on the programme of work of the Commission in 2018, the proportion of topics taking the form of draft articles has decreased in relative terms. Unless this changes in future discussions, there are only three topics that take the form of draft articles (Crimes against Humanity, Immunity of State Officials from Foreign Criminal Jurisdiction, Succession of States in Respect of State Responsibility), while other topics take the form of three draft conclusions (Peremptory Norms of General International Law, Identification of Customary International Law, Subsequent Agreement and Subsequent Practice in Relation to Interpretation of Treaties), two draft guidelines (Provisional Application of Treaties, Protection of the Atmosphere), and one draft principles (Protection of the Environment in Relation to Armed Conflicts). In 2019, two topics have been added to the programme of work, namely General Principles of Law and Sea-level Rise in Relation to International Law, the outcomes for which are expected not to take the form of draft articles.Footnote 29
When the outcome takes a form other than draft articles, it generally stresses its non-binding character, as carefully chosen terminologies indicate. For instance, in case of the Guide to Practice on Reservations to Treaties (2011), it was explicitly noted that:
as the title and the word “guidelines” indicate, it is not a binding instrument but a vade mecum, a “toolbox” in which the negotiators of treaties and those responsible for implementing them should find answers to the practical questions raised by reservations.Footnote 30
The commentary to the Draft Principles on the Allocation of Loss in the Case of Transboundary Harm Arising Out of Hazardous Activities (2006) also noted: “[a]s the draft principles are general and residuary in character they are cast as a non-binding declaration of draft principles.”Footnote 31
As a necessary corollary, the recommendations of the ILC to the General Assembly in accordance with Article 23 of its Statute have been not to convoke a conference to conclude a formal treaty law or convention. For instance, in the case of the Draft Principles on the International Liability in Case of Loss from Transboundary Harm Arising Out of Hazardous Activities (2006), the ILC recommended to the Assembly to “endorse the draft principles by a resolution and urge States to take national and international action to implement them”.Footnote 32 In the case of the Guide to Practice on Reservations to Treaties (2011), the Commission recommended to “the General Assembly to take note of the Guide to Practice and ensure its widest possible dissemination”.Footnote 33 In the case of the Guiding Principles Applicable to Unilateral Declarations of States Capable of Creating Legal Obligations (2006), the Commission only “commended the ‘Guiding Principles’ to the attention of the General Assembly”.Footnote 34 In the case of the Draft Conclusions on the Identification of Customary International Law (2018), the Commission recommended that:
the General Assembly
(a) take note in a resolution of the draft conclusions on identification of customary international law, annex the draft conclusions to the resolution, and ensure their widest dissemination;
(b) commend the draft conclusions, together with the commentaries thereto, to the attention of States and all who may be called upon to identify rules of customary international law …Footnote 35
In the case of the Draft Conclusions on Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties (2018), the Commission also made its recommendation using similar phrasing.Footnote 36
Although certain works of the ILC were previously produced in various forms other than draft articles, and were not always recommended for conversion into treaties, such cases were considered the exception rather than the norm.Footnote 37 However, in recent years this practice has become a clear and readily observable tendency. The following questions thus arise: What are the reasons for the ILC's moving away from adopting draft articles as the final form of its work, and what are the implications of the changing form of its work in terms of its role in the development of international law?
II. REASONS FOR THE CHANGING FORM OF THE ILC'S WORK
The changing tendency in the final form of the work of the ILC is a priori related to the topics dealt with in that body. The decreasing share of draft articles as the final form of the work of the ILC is partly due to the completion of a list of topics suitable for codification. In the early years, the ILC devoted itself to providing drafts on the traditional subjects of international law, such as diplomatic and consular relations, and law of treaties.Footnote 38 These topics were ripe for codification, with a substantial body of state practice in existence, on which basis customary rules had been developed with greater or lesser clarity.Footnote 39 Therefore, as noted, “these topics more readily lent themselves to being reduced to a general law-making treaty form”.Footnote 40 However, with most of the topics that were ripe for codification in a provisional list drawn up in 1949 having already been completed,Footnote 41 the topic of state responsibility has been referred to as the last significant area of the great effort to codify international law.Footnote 42
In 1998, the ILC noted that “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” in the selection of the topics.Footnote 43 Development and expansion of topics of international law and the growth of specialized areas have also affected the selection of topics. Indeed, there is an increasing proportion of topics selected by the ILC that are related to human rights law or environmental law.Footnote 44 With less state practice providing concrete customs to codify, the new exploratory areas of international law would require less rigid approaches, not specifying burdensome or excessive obligations upon a state. The present topics in the ILC such as the Protection of the Atmosphere in the form of draft guidelines, the Protection of Environment in Relation to Armed Conflicts in the form of draft principles, and Jus Cogens (Peremptory norms of general international law) in the form of draft conclusions, might be cases in point.Footnote 45 In case of the topic of Protection of Environment in Relation to Armed Conflicts, although the initial proposal by the Special Rapporteur suggested a “draft framework convention” or “statement of principles of rules”Footnote 46 as the final form of outcome, further discussion favouring a non-binding outcome (reflecting the discussion at the Sixth Committee where a number of states supported such an outcome) led to the topic being finally concluded in the form of “draft principles”.Footnote 47
The changing tendency in the final forms of the work of the ILC is also related to the necessity of a flexible approach for enhancing its impacts.Footnote 48 In general, the use of a soft law form is often a compromise between those states that do not favour any regulatory instrument and those that would have preferred the conclusion of a treaty.Footnote 49 This is also the case for the final form of the ILC's work. Adopting a form other than draft articles holds the merit that the ILC may, as the term itself suggests, reserve a certain flexibility in discussion of the subject. Moreover, such forms may be useful for topics where there is difficulty in enforcing harmonization with national laws or where there is insufficient state practice.Footnote 50 Thus, when the draft is considered in the Sixth Committee, states might regard such non-binding forms attractive because they provide more flexibility in implementation.Footnote 51
This may be inferred from the statements delivered by states at the Sixth Committee on topics related to the environment, where a number of states expressed their preference for avoiding phrasing in mandatory terms and stressed the non-binding nature of the draft in creating no specific obligations upon states. For instance, on the topic of the Protection of Atmosphere, India emphasized that:
[w]hile we like the suggestion of cooperative mechanisms, this is however our understanding that the guidelines, when finally adopted, would be available as a material to be followed and used to the suitability of conditions and willingness of States, and not to be implemented, as such, as the treaty provisions … the guidelines are not creating the binding international law themselves.Footnote 52
The Chinese delegation also noted that, whereas China supported the reaffirmation in the present draft guidelines of basic principles of international law such as those on international co-operation and the peaceful settlement of disputes, it noted that “explicit legal obligations placed on States to protect the atmosphere have yet to materialize, and the relevant practice and rules are still being developed”.Footnote 53 On the topic of the Protection of Environment in Relation to Armed Conflicts, the US was concerned that several of the draft principles were phrased in mandatory terms purporting to dictate what states “shall” or “must” do; the US contended that such language was only appropriate with respect to well-settled rules that constitute lex lata, and regarded making binding terms as inappropriate.Footnote 54
Indeed, certain topics that are discussed in a form other than draft articles are often by their nature not suitable for developing into a treaty. There are topics that do not aim for codification, but that provide certain legal views for the expanding and in-depth understanding of international law. The most representative topic in this regard might be Fragmentation of International Law, which takes the form of “Report of the Study Group”. There are also topics that are ineligible for transformation into a treaty as the scope is too narrow. For instance, the topic concerning Reservation to Treaties is related to specific provisions of the Vienna Convention on the Law of Treaties. In such a case, the goal would not be the exploration of a new area that could be comprehensively dealt with by way of an all-inclusive set of rules, but a supplementary guide to resolving a specific issue, in this case, reservations to treaties. As indicated by two topics adopted this year, “conclusions” may be used to shed light on existing practice relating to a specific process.Footnote 55 On the other hand, there are also topics where only overarching approaches are eligible, as the aim is solely to harmonize the existing rules on the subject and not to prescribe or create specific obligation upon states beyond the existing rules. In this regard, it is notable that the preamble of the Draft Guidelines on the Protection of the Atmosphere stresses that the draft guidelines are not intended “to ‘fill’ gaps in treaty regimes nor impose on current treaty regimes legal rules or legal principles not already contained therein”.Footnote 56 Meanwhile, by adopting texts which forestall the possibility of development as binding conventions, the ILC can be more progressive in the development of rules above and beyond the immediate state interests.
III. IMPLICATIONS OF THE CHANGING FORM OF THE ILC'S WORK
The question then follows: What are the implications of the changing form of the work of the ILC? And further: Are differences in the impacts of the work of the ILC presented in the various forms other than draft articles, in terms of the role of the ILC for its commitment in the development of international law?
In the past, Special Rapporteurs mostly insisted on their drafts being recommended to the General Assembly for the conclusion of an international convention, and to see a draft transformed into a convention was considered to be the most prestigious outcome of a drafting exercise.Footnote 57 As a necessary conclusion, “draft articles” were preferred as the final form of the work, and success or failure has largely been measured by whether such a result is achieved. However, it is questionable whether transformation into a treaty could be regarded as the most desirable and successful result of the work of the ILC.Footnote 58 Although the draft provides the basis for negotiation for concluding a convention, its rationale or logic could be modified in the course of a diplomatic conference for negotiations. Details of the work done by the ILC can be amended, according to the interests of powerful states or for immediate practical necessity. Even when a convention has been adopted, it is sometimes not able to enter into force due to insufficient ratification, and such a hesitant response from the international community would weaken its status.Footnote 59 On the other hand, a draft which remains as adopted by the ILC, although it may not be the formal source of international law, may be regarded as an authoritative statement of general international law.Footnote 60
Indeed, although it has not been transformed into multilateral treaties and thus is not counted among the three principal sources of international law in terms of Article 38(1) of the Statute of the International Court of Justice, the work of the ILC stands as far and away the most common source relied upon by the judges of international courts.Footnote 61 Perhaps the Articles on Responsibility of States for Internationally Wrongful Acts (2001) are most frequently used—although not exclusively—in the jurisprudence of international courts.Footnote 62 The Court may consider the ILC drafts to be evidence of customary international law (although the Court conducts its own examination on whether a particular norm has a customary status), clarification of certain legal issues, or the teachings of the most highly qualified publicists of various nations.Footnote 63 However, this kind of impact is not limited to ILC outcomes in the form of draft articles.
In respect of measuring the implications of its outcome, which takes various forms, success or failure of the work of the ILC would not be measured in terms of whether the outcome has been transformed into a treaty with positive responses by states. Furthermore, in the absence of specific measures demonstrating the acceptance of states during the negotiation process, it would be hard to gauge the extent to which states have actually consulted and relied upon the final product of the ILC when such product takes forms other than draft articles. Nonetheless, if an ILC report has been widely cited and referenced by scholars and practitioners, this may in the end influence state practice on the subject. Although not binding, ILC outcomes in the form of principles or guidelines would be referred to as a guide when states need to consider the issues in question, relying upon the authority of the ILC. In such instances, the outcomes of this work would have long-term impact on the development of international law.
No one would deny that the ILC's work on the Fragmentation of the International Law has affected development of the theory of international law, “by suggesting an even more refined look at the types of treaty collision rules, leading to a more sophisticated means for dealing with specialized situations”.Footnote 64 As such, ILC outcomes taking the form of reports may be used to help advance an understanding of key areas of international law.Footnote 65 Indeed, notwithstanding the various forms of the work of the ILC, all work done by the ILC may have its own implications, and various forms other than draft articles should not be regarded as reducing the implications of the Commission's work.
Diversity in the form of the work of the ILC can also be examined in terms of extending the impact of the Commission's work. There are three aspects that can be considered here.Footnote 66 The first is widening the audience. Those works which take the form of guidelines or conclusions aim to influence or to be used beyond the scope of states participating in negotiations for the conclusion of a treaty. For instance, in the case of the Guide to Practice on Reservations to Treaties (2011), it was indicated that “the purpose of the Guide to Practice [is] to provide assistance to practitioners of international law, who are often faced with sensitive problems concerning, in particular, the validity and effects of reservations to treaties”.Footnote 67 There are indeed those for whom the Guide will be of particular utility, such as legal advisers serving ministries of foreign affairs. On the topic of Identification of Customary International Law, the Special Rapporteur stressed that:
the aim of the topic is to offer some guidance to those called upon to apply rules of customary international law on how to identify such rules in concrete cases. This includes, but is not limited to, judges in domestic courts, and judges and arbitrators in specialized international courts and tribunals.Footnote 68
During the debate, there was broad support for the elaboration of a set of conclusions with commentaries, to “serve as a guide to lawyers and judges who are not experts in public international law”.Footnote 69 Accordingly, this year, when submitting to the General Assembly, the Commission recommended for the General Assembly to commend the draft conclusions not only to the attention of states but also to “all who may be called upon to identify rules of customary international law”.Footnote 70 Similarly, on the topic on Subsequent Agreements and Subsequent Practice, the Special Rapporteur noted in his first report that the aim of the discussion is “to give orientation to those who interpret or apply treaties”, including “judges (at the international and the national levels), officials of States and international organizations, academics and other private actors”.Footnote 71 Accordingly, this year, the Commission recommended that the General Assembly “commend the draft conclusions … to the attention of States and all who may be called upon to interpret treaties”.Footnote 72
The second is widening the scope of subject areas. Some have expressed concern that the ILC is not an academic think tank, and exists in order to develop draft treaties.Footnote 73 However, as pointed out in the Report on the Fragmentation of International Law, a unique function of the ILC is its ability to “speak the language of general international law, with the aim to regulate, at a universal level, relationships that cannot be reduced to the realization of special interests and that go further than technical coordination”.Footnote 74 This function would not be fulfilled through draft articles aiming to be transformed into a treaty.Footnote 75 Indeed, by producing varying forms adaptable to an extended scope of subjects, the ILC may remain relevant in the development of international law, and make its existence and function more meaningful.
The third is increasing the comprehensiveness of the topics examined. For instance, in the Guide to Practice on Reservations to Treaties (2011), the ILC attempted to provide a comprehensive approach to the issue of reservations to treaties through a lengthy production amounting to 630 pages including commentaries. Although draft articles may also provide commentaries, such notes would be much more limited in scope, constrained to explanation of the respective provisions. Moreover, by using a non-binding instrument, the ILC was able to address the controversial issues related to treaty reservations, such as “the competence of human rights bodies to assess the validity of reservations to human rights treaties”.Footnote 76 Indeed, this Guide to Practice explicitly noted that “[a]t times, the rules contained in the guidelines are clearly set out de lege ferenda” and “[o]ther rules are simply recommendations and are meant only to encourage”. It went on to explain about the last category of the guidelines that “such provisions would not have been included in a traditional set of draft articles intended to be transformed, if appropriate, into a treaty”.Footnote 77 As noted, many of its provisions are in the nature of recommendations that “would not have been included in a traditional set of draft articles intended to be transformed … into a treaty”.Footnote 78
IV. CONCLUSION
In the early 1980s, in a study conducted by the United Nations Institute for Training and Research [UNITAR] to provoke reconsideration of the Commission's place within the UN system, the ILC was asked to expand its role by using various forms such as restatement or analysis.Footnote 79 The implications of diversity in final forms can be examined in terms of the changing role of the ILC. In its first three decades, the ILC focused on the codification of international law by engaging in providing drafts for treaties. Now the ILC continues to perform its role in aiming at the development of international law by dealing with a wider scope of topics in a variety of forms. The ILC has enhanced its role in the development of international law through the changing final form of its work, by ensuring the flexibility and efficacy of discussion on the topic at hand. By opting for soft-law instruments, the ILC confines the results of its work to an authoritative restatement of legal views, but one that also serves as a practical guide for a non-state audience. This shift reflects larger trends in international law, where flexible approaches to regulation are necessary in order to attract the attention of the international community with regard to the widening scope of international matters. In opting for various forms appropriate for dealing with a wider scope of topics, it is likely that the ILC is envisioning its continuing role for the development of international law.